Madras High Court: In civil revision petition filed under Article 227 of the Constitution of India, to set aside the order passed by the Subordinate Court, G.R. Swaminathan, J. while setting aside the impugned order, held that privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible.
The parties got married in 2003. Alleging cruelty, adultery and desertion on the part of the wife, the husband filed for dissolution of the marriage. The husband submitted a call data record of the wife. Seeking rejection of the said document, the wife filed an application. It was dismissed as premature by the court below vide order dated 14-03-2024. Challenging the same, the present petition has been filed.
After taking note of Section 63 and Section 39 of Sakshya Adhiniyam, 2023 (‘BSA’) and Section 79A of the Information Technology Act, 2000, the Court concluded that a person desirous of relying on any electronic record as a document in evidence must submit a certificate at the time of filing the electronic record. The certificate must be in two parts, Part A and Part B. Part B must be filled up by the expert notified under Section 79A of the Information Technology Act, 2000.
The Court noted that only a handful of entities have been notified till date as experts under Section 79A of the Act. However, no expert has been notified in the State of Tamil Nadu.
The Court remarked that since BSA has already come into force, very soon there will be need for certificates under Section 63(4) of BSA for securing admission of electronic records. If experts are not available in Tamil Nadu, that would result in denial of the right of access to justice which is a fundamental right.
Therefore, the Court directed Ministry of Electronics and Information Technology (‘MEITY’) to expeditiously notify sufficient number of persons/bodies/entities as experts in the State of Tamil Nadu. The number to be so notified will have to commensurate with the possible demand in each district in Tamil Nadu.
The Court directed that this exercise of assessment and notification should be carried out within a period of three months from the date of receipt of a copy of this order.
The Court recognized that current compliance with the statutory requirements of Section 79A of the I.T. Act is not feasible. The suggestion from the amicus to interpret the Section more broadly, allowing individuals especially skilled in computer science to be considered experts for Part B of the certificate, raises important considerations.
The Court expressed reluctance to adopt an interpretation that would effectively rewrite Section 79A of the I.T. Act, emphasizing the importance of adhering to statutory language. However, it acknowledged that a situation could arise where such an interpretation becomes necessary if the Central Government fails to issue the required notification under this section.
The Court took note of the applicable provision is Section 65B(4) of the Evidence Act, 1872, and the decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, wherein it was held that furnishing of certificate under Section 65B(4) was mandatory, however, Section 65B does not speak of the stage at which such certificate must be furnished to the Court. It was further held that so long as the hearing in trial is not yet over, the requisite certificate can be directed to be produced at any stage so that information contained in electronic record form can be admitted and relied upon in evidence.
Concerning the present case, the Court noted that the certificate enclosed by the husband reads that the electronic statement was taken from Jio official website and that the website is in order without any malfunction.
The Court found that the call history obtained by the husband from the telecom provider Jio was not valid as evidence because he could not issue a self-serving certificate. Although he accessed the information while the phone was in his custody, the required certificate under Section 65B (4) of the Evidence Act was missing. The Court noted that only an authorized official from Jio could issue such a certificate, emphasizing that the husband’s actions fell short of legal requirements established in the case of Arjun Panditrao Khotkar (supra).
The Court asserted that the husband’s actions constituted a clear invasion of the wife’s right to privacy, as he obtained her call history without her consent. It noted that he was neither the owner of the mobile device nor the registered user of the SIM card, and his possession of the phone was only temporary and clandestine.
After taking note of K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1 , wherein it was held that any curtailment or deprivation of the privacy right would have to take place under a regime of law and that the procedure must be fair, just and reasonable and subject to constitutional safeguards, the Court held that “regime of law” envisages a special and comprehensive legislation dealing with the subject of privacy. However, there is no “regime of law” dealing with the subject of privacy as of now.
The Court noted that the Family Courts Act, 1984 was enacted more than three decades prior to Justice Puttaswamy (supra). The discretionary power conferred on the Family Court under Section 14 of the Family Courts Act cannot be said to fall within the meaning of the aforesaid expression “regime of law”. There is no legislative validation of evidence obtained by violating the fundamental right to privacy. Thus, it would not be proper for the courts to carve out exceptions on their own.
After taking note of the article Rethinking the ‘Fruits of the Poisonous Tree’ Doctrine: Should the ‘Ends’ Justify the ‘Means’ ?, 2020 SCC OnLine Blog OpEd 76 by Bharat Chugh and Taahaa Khan, the Court noted that the concept of ends justifying the means is deeply troubling and calls for judicial intervention.
The Court said that law cannot proceed on the premise that marital misconduct is the norm. It cannot permit or encourage snooping by one spouse on the other.
Thus, while setting aside the impugned order, the Cour held that Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible.
[R v. B, 2024 SCC OnLine Mad 6084, decided on 30-10-2024]
Advocates who appeared in this case:
For Petitioner: Advocate D.Senthil
For Respondents: Advocate J. Senthil Kumaraiah, Deputy Solicitor General of India Mr. K. Govindarajan, Senior Counsel Srinath Sridevan
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