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Divya Elsa Raju
Introduction
The Indian Constitution guarantees fundamental rights to its citizens, including the right to privacy, the right against self-incrimination, and the right to be free from arbitrary searches and seizures, thereby it becomes essential to safeguard constitutional rights during police searches and seizures to ensure justice, fairness, and adherence to the rule of law.
Increased accessibility to personal information can expose individuals to fraud or identity theft. The power imbalance between individuals and entities such as governments and corporations that hold information can lead to anxiety and hyper-awareness about actions and speech, thus discouraging people from expressing critical views or participating in protests thereby leading to a phenomenon, known as the chilling effect, on society.[i]
The Chilling Effect
This is a social phenomenon that occurs when individuals voluntarily censor themselves, to avoid legal repercussions for their speech and expression. The fear of punishment leads people to be overly cautious about what they say and do, even refraining from the speech and expression they are allowed to make or should be making. This silencing effect is detrimental to public accountability and can prevent criticism when it is needed.[ii]
The concept originated from American defamation law, where high burdens of proof and punitive damages were used to silence critical speech[iii] while in India it has been recognised through cases involving privacy and sexual autonomy.
Section 377[iv] of the Indian Penal Code was deemed an unreasonable restriction due to its chilling effect on individual freedom. Similarly, in Shreya Singhal v. Union of India[v], the courts emphasized the need for narrow restrictions on speech to avoid chilling effects. Additionally, in K.S. Puttaswamy v. Union of India[vi], the Supreme Court highlighted that even minor infringements on fundamental rights can have chilling effects and are constitutionally impermissible.
Search and seizure are crucial aspects of any investigation, involving the careful examination and thorough inspection of a place, vehicle, or person to find evidence.[vii] It provides tangible evidence that can be presented in court. Although the laws governing these practices may differ in detail, they share fundamental characteristics across different countries.[viii]
Section 100 of the 1973 code[ix], outlines the procedure for search, that be with or without a warrant, in India. It allows for searches in open places without obscurity. They can also search closed compounds if there is a reasonable procedure followed, with occupants required to grant access to the police.
Section 47 of the Code[x] allows the police to break open doors or windows if obstructed during a search under Section 100. Searches are not limited to the place specified but extend to anyone arousing suspicion of committing or about to commit a crime, with female police officers conducting searches on females.
Sections 51[xi] and 52[xii] of the Code are crucial for search and seizure, forming part of the arrest process and the investigation of cognizable cases without the need for a warrant. Section 102[xiii] empowers the police to seize any property during an investigation if it raises suspicion of a crime, including assets held in banks, known as freezing, which attaches the property.
However, illegal searches and seizures violate constitutional rights under Articles 21[xiv] and 301A[xv], with strict procedures for preparing seizure lists and requiring witness attestation. These processes aim to safeguard the rights of the accused, with judicial precedents establishing checks and balances.
What the Constitution says
Article 20[xvi] guarantees certain protections for individuals accused of committing an offence. It ensures that no person can be convicted of an offence unless it was an offence under the law at the time of its commission, and no person can be subjected to a penalty greater than what was applicable at the time of the offence.
Additionally, it also prohibits double jeopardy, meaning a person cannot be prosecuted and punished for the same offence more than once. Furthermore, it grants individuals the right to not be compelled to be a witness against themselves, safeguarding them against self-incrimination. This right allows individuals to remain silent during police interrogations and prevents them from being forced to confess to a crime. These protections are vital for ensuring fair treatment and adherence to legal procedures during criminal investigations.
Article 21[xvii] states that no person can be deprived of their life or personal liberty except according to the procedure established by law. The Apex Court has emphasized that any regulation depriving a person of their life or liberty must not only be authorized by law but must also provide a fair, just, and reasonable procedure. This principle was established in the landmark case of Maneka Gandhi v. Union of India[xviii], where the court held that the procedure established by law must meet certain standards to ensure the protection of life and personal liberty.
Article 22[xix] safeguards individuals against arrest and illegal detention. It stipulates that a person who is arrested must be informed of the grounds for their arrest without delay and has the right to consult and be defended by a legal practitioner of their choice. Additionally, no person can be held in police custody for more than 24 hours without the authorization of a Magistrate.
The principle of innocent until proven guilty[xx] is fundamental in our criminal justice system. However, there are exceptions, particularly for marginalized groups such as women, where certain assumptions can affect the presumption of innocence, as seen in cases of rape and dowry deaths.
Search and seizure powers granted to the state are meant to serve the broader interests of society, yet these powers directly impact personal liberty and the right to privacy. While the Indian Constitution does not explicitly guarantee a right to privacy, attempts have been made to derive this right from Article 21, which pertains to personal liberty.
Modern constitutional interpretations
In the landmark case of M.P. Sharma v. Satish Chandra[xxi], the court ruled that searches, as governed by Indian criminal procedural law, do not amount to self-incrimination. The Indian Constitution does not explicitly guarantee a right to privacy, leading the court to reject the notion of a fundamental right to privacy in search-and-seizure actions.
Since Article 21[xxii] guarantees the right to life and personal liberty, it is crucial to understand the historical context and construction of Article 21. The drafting committee debated whether to include "due process of law" or "procedure established by law." Ultimately, the latter was chosen for its clarity, based on the Japanese constitution's Article 31[xxiii]. However, unlike Japan, India lacks specific safeguards, such as those in Articles 32[xxiv], 34[xxv], and 35[xxvi], to protect against misuse of power by the government.
In the current political climate, there is a growing concern about the abuse of power by governments, leading to the erosion of individual rights. Laws like the Unlawful Activities Prevention Act[xxvii] have been used to detain and silence dissenters, including journalists and activists. These laws allow the government to label individuals as terrorists without trial, infringing upon fundamental rights.
Judicial updates on search and seizure
In the case of Kharak Singh v. State of UP[xxviii], the court established privacy as an essential element of personal liberty. It ruled that privacy encompasses not just physical security but also spiritual and emotional well-being. The right to privacy includes the protection of personal matters such as family, marriage, motherhood, and education. The court outlined three categories of reasonable restrictions on privacy: legislative, administrative, and judicial warrants, with the latter requiring justifiable reasons for search or seizure actions.
Article 19[xxix], which guarantees certain freedoms, is often interpreted in conjunction with Article 21's right to personal liberty[xxx]. However, Puttaswamy v. Union of India [xxxi]clarified that the right to privacy is inherent in Article 21 and not subordinate to the rights under Article 19. The court emphasized that while privacy is fundamental, it is not absolute and must be balanced with public interest. was a landmark judgment that recognized the right to privacy as a fundamental right under Article 21.
The case challenged the Aadhaar scheme, which required individuals to provide biometric information for government benefits. The court held that privacy is an inherent part of personal liberty and cannot be violated except by a fair, just, and reasonable procedure established by law.
In Gobind v. State of Madhya Pradesh[xxxii], the court acknowledged privacy as a fundamental right under Article 21. The court held that privacy includes protection of home, family, marriage, motherhood, and child rearing. It also stated that the right to privacy is subject to limitations based on public interest and that any law infringing on this right must fulfill a legitimate state need.
Privacy also extends to patient information, with strict laws prohibiting medical practitioners from disclosing patient identities without consent, except in cases affecting public welfare. The 2011 amendment to the IT Act[xxxiii] defined sensitive personal data and emphasized the need for patient consent before disclosure.
After the Puttaswamy case, the Indian government's Aadhaar Scheme faced scrutiny regarding privacy and surveillance concerns. The Supreme Court upheld the constitutionality of the scheme but struck down certain provisions, emphasizing the importance of privacy protection in the digital age. These cases have significantly shaped the legal framework surrounding privacy and surveillance in India.[xxxiv]
Conclusion
In conclusion, the principles of search and seizure are integral to the Indian criminal justice system, balancing the needs of law enforcement with the protection of individual rights. While these powers are essential for investigations and maintaining public safety, they must be exercised judiciously and per constitutional safeguards.
The Indian Constitution, through Articles 20, 21, and 22, ensures that search and seizure actions respect the rights of individuals, including the right to privacy, the right against self-incrimination, and the right to be free from arbitrary searches and seizures. Judicial interpretations have further clarified and expanded these rights, emphasizing the need for a fair and just procedure.
However, challenges remain, particularly regarding the potential for abuse of power. Laws like the Unlawful Activities Prevention Act highlight the need for strict adherence to constitutional principles and judicial oversight.
Moving forward, there is a need for continued vigilance to ensure that search and seizure powers are used responsibly, respecting the rights and dignity of individuals. Strengthening legal safeguards and promoting public awareness can help maintain the delicate balance between law enforcement and individual liberties in India.
References
[i] Chinmayi Arun, 'Paper-Thin Safeguards And Mass Surveillance In India' 26(2), NATIONAL LAW SCHOOL OF INDIA REVIEW, 105-114 (2015).
[ii] Gautam Bhatia, 'Common Concepts' in Offend, Shock or Disturb: Free Speech Under the Indian Constitution, OXFORD UNIVERSITY PRESS, 32 (2018).
[iii] New York Times v Sullivan, 376 US 254 (1964).
[iv] Navtej Singh Johar v. Union of India 2018 INSC 790
[v] Shreya Singhal v Union of India, (2015) 5 SCC 1.
[vi] K S Puttaswamy ( Privacy- 9J) v Union of India, (2017) 10 SCC 1.
[vii] Malika Galib Shah, Akash Gupta, et al., Search And Seizure Of Electronic Devices In India: Time For A Change?, THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF, (2024). https://doi.org/10.1177/13657127241230694
[viii] Sidhartha Sekhar Dash, Comparative Analysis of the Law on Search and Seizure in India and the USA. JOURNAL OF EMERGING TECHNOLOGIES AND INNOVATIVE RESEARCH, 5(3), pp.323-326, (2018).
[ix] Criminal Procedure Code, 1973, § 100, No. 2, Acts of Parliament, 1974 (India).
[x] Criminal Procedure Code, 1973, § 100, No. 47, Acts of Parliament, 1974 (India).
[xi] Criminal Procedure Code, 1973, § 100, No. 51, Acts of Parliament, 1974 (India).
[xii] Criminal Procedure Code, 1973, § 100, No. 52, Acts of Parliament, 1974 (India).
[xiii] Criminal Procedure Code, 1973, § 100, No. 102, Acts of Parliament, 1974 (India).
[xiv] INDIA CONST. art. 21
[xv] INDIA CONST. art. 301A
[xvi] INDIA CONST. art. 20
[xvii] Supra note 14,
[xviii] 1978 AIR 597
[xix] INDIA CONST. art. 22
[xx] See Tarun Jain, Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted': Tracing the Origin and the Implications of the Maxim. PRESUMPTIONS: DOCTRINES & APPLICATIONS, ICFAI University Publications (2008).
[xxi] 1954 AIR 300
[xxii] Supra note 14.
[xxiii] JAPAN CONST. art. 31
[xxiv] JAPAN CONST. art. 32
[xxv] JAPAN CONST. art. 34
[xxvi] JAPAN CONST. art. 35
[xxvii] The Unlawful Activities (Prevention) Act, 1967, No. 37, Acts of Parliament, 1967 (India).
[xxviii] 1963 AIR 1295
[xxix] INDIA CONST. art. 19
[xxx] Supra note 14.
[xxxi] AIR 2018 SC (SUPP) 1841
[xxxii] AIR 1975 SC 1378
[xxxiii] Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India) amended by The Information Technology Rules, 2011
[xxxiv] Vrinda Bhandari and Karan Lahiri, The Surveillance State, Privacy And Criminal Investigation In India: Possible Futures In A Post-Puttaswamy World, 3(2), UNIVERSITY OF OXFORD HUMAN RIGHTS HUB JOURNAL, (2020)
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