A TRYST OF RIGHT TO PRIVACY WITH SEARCH AND SEIZURE

This Article Tries To Question The Status Of Search And Seizure Under The Income Tax Act (The Act) After The Landmark Judgment Delivered By A 9 Judge Bench Of Hon’ble Supreme Court Of India, By Reading The Right To Privacy As An Integral Part Of Art. 21 Of The Constitution And Hence, Declaring It To Be A Fundamental Right.

INTRODUCTION

Right To Privacy Has Always Been A Corner Stone Of A Private Life. It Is So Quintessential And Imperative That If A Person Is Striped Off Of Such Right Then He Will Left With Nothing To Fend For Or Hide. Today, Correcting The Fait Accompli, It Is Read As A Fundamental Right. It Took A Long Time For The Court To Quench And Realise That The Right To Privacy Is An Indispensable Right. The Right To Privacy Is Not A Recent Notion, Perhaps Primordial. The Right To Privacy Can Be Found In The Writings Of Hitopadesh. Hitopadesh Enunciates That Certain Matter Such As Worship, Sex And Family Matters Should Be Protected From Disclosure, In A Crude Sense Is Nothing But Right To Privacy.

Given The Concept Of Privacy, The State Has Its Eternal Responsibility For Securing Socio-Economic Well-Being And Progress Of Society. The Dimension Of Governmental Function Has Always Been Dynamic And It Has Changed Due To Modern Developments. For The Due Performance Of Its Enormous Public Duties States Has To Resort To Charge Heavy Taxation. Collection Of Taxes Is The Blood On Which The Government Survives. No Taxes Mean No Development, No Education, No Infrastructure, And So On. In This Context, Search And Seizure Is No Less Than A Weapon In The Arsenal Of State. The State Is Entrusted With Onerous Duty To Maintain Social Security And Provide Development In Its Broadest Sense. The Government Devised The Tool Of Search And Seizure To Spot People Who Are Hoarding Illegal Money. Action Of Search And Seizure Is Marred But It Is A Very Effective Tool Against Rapacity, If Utilized Strictly Adhering To The Sanctuary Of Law. The Process Is Widely Recognised In All Civilized Countries.

1 Search And Seizure Here Is Only Restricted To Sec. 132 Of The Income Tax Act And Author Is Not Contemplating To Read Search And Seizure From Any Similar Act.

WHAT IS RIGHT TO PRIVACY?

Black’s Law Dictionary: “Right To Be Let Alone; The Right Of A Person To Be Free From Unwarranted Publicity; And The Right To Live Without Unwarranted Interference By The Public In Matters With Which The Public Is Not Necessarily Concerned.”

New Oxford English Dictionary: “Absence Or Avoidance Of Publicity Or Display; The State Or Condition From Being Withdrawn From The Society Of Others, Or From Public Interest; Seclusion.”

Jude Cooley Explained: The Law Of Privacy And Has Asserted That Privacy Is Synonymous To The Right To Be Let Alone.

Edward Shills Has Also Explained: Privacy Is A Zero Relationship Between Two Or More Persons In A Sense That There Is No Interaction Or Communication Between Them, If They So Choose.

In Layman Terms, Right To Privacy Can Be Denoted As A Right Of A Person To Live Free. Live Free Without Unwarranted Interferences, Checks, Publicity, Or Display. It Is A Right To Let On Live In Nook And Enjoy Seclusion Without Unnecessary Hindrances.

It Is Not A Gawking Fact That The Part III Of The Constitution I.E. Fundamental Rights Is A Borrowed Concept And It Was Borrowed From The American Constitution. The American Fourth Amendment In The American Constitution Expressly Provides:–

The Right Of The People To Be Secure In Their Persons, Houses, Papers And Effects Against Unreasonable Searches And Seizures, Shall Not Be Violated, And No Warrant Shall Issue, But Upon Probable Cause, Supported By Oath Or Affirmation And Particularly Describing The Place To Be Searched, And The Persons Or Things To Be Seized

The Fourth Amendment Provides For An Abundant Safeguard From The Illegal Search And Seizure. The Concept Of Privacy In America Is Sacrosanct But In India It Was Unheard Of Until Recently. Though, The Fundamental Rights Are Borrowed From The American Constitution, Our Forefather Didn’t Find Any Requirement Or Need To Incorporate The Right To Privacy Explicitly In The Indian Constitution. It Can Also Be Said That The Forefathers Thought Of Privacy As A Mores And Not Thought Of Providing A Notion Which Is Perennially And Deeply Fabricated In The Lives Of People.

INDIAN CONSTITUTION AND RIGHT TO PRIVACY

The Constitution Of India Is An Apotheosis Of Theory Of Grundnorm As Laid Down By Kelsen. It Is The Most Important Document Giving Legal Sanctity To Other Laws In India. Ostensibly Speaking The Constitution Is Premised On Borrowed Principles, Which Were Then The Best Practices Available Around The World. The Framers Of Constitution Had Made A Deliberate Efforts To Make Changes In Concepts According To Indian Political, Topographical, And Societal Need And Then Permeate It In The Constitution.

The Most Kernel And Functional Part Of The Constitution Is Part III, Which Encompasses The Fundamental Rights In It. The Fundamental Rights Are The Basic Rights Which Are Inherited In Every Human Being. These Rights Are Endowed Upon Every Citizen Of The Country And In Case Of Misfeasance Of Any Fundamental Rights, Proper Panaceas Are Also Provided Under Article 32 Of The Constitution.

The Issue Of Right To Privacy Was Broached For The Very First Time In Debate Of Constituent Assembly Where K T Shah Wanted The Following Formulation (December 1946):

“Every Citizen Of India Has And Is Hereby Guaranteed Security Of His Person, Papers, Property, House Or Effects Against Unreasonable Searches Or Seizure.”

Dr. B. R. Ambedkar Gave A More Elaborate Formulation (March 1947) Favoring A Collective Right Over An Individual One:

“The Right Of The People To Be Secure In Their Persons, Houses, Papers And Effects Against Unreasonable Searches And Seizures, Shall Not Be Violated And No Warrants Shall Issue, But Upon Probable Cause, Supported By Oath Of Affirmation, And Particularly Describing The Place To Be Searched And The Persons Or Things To Be Seized.”

Still, The Constitution Of India Did Not See Any Concrete Article Imbibed With Thread Of Right To Privacy. After Passing Of The Recent Judgment Of 20172, Right To Privacy Has Obtained Impetus Throughout The World And It Has Been Recognized As A Fundamental Right.

2 K.S. Puttaswamy V. Union Of India (2017) 10 SCC 1.

TRACING THE JUDICIAL APPROACH TO THE RIGHT TO PRIVACY

M.P. Sharma V. Satish Chandra3 (1954):

Privacy For Consideration As A Fundamental Right First Came Before An Eight-Judge Bench Of Hon’ble Supreme Court In The Year
Wherein While Dealing With The Power To Search And Seize Documents From The Dalmia Group, The Contours Of The Police’s Powers Of Search And Surveillance Were Outlined, It Was Held That There Is No Right To Privacy Under The
Thus, The Court Adopted A Narrow And Formalistic Approach By Pointing To The Absence Of A Specific Constitutional Provision Analogous To The Fourth Amendment Of The US Constitution, To Protect The Right Of Privacy Of Indians From Unlawful.

Kharak Singh V. State Of Punjab4 (1963):

After Almost A Decade, Before A Six-Judge Bench Of The Hon’ble Supreme Court, The Privacy And Private Life Issue Once Again Emerged, Only To Be Rejected
While Striking Down The Provision Of Chapter XX Of The Uttar Pradesh Police Regulations, Which Allowed For Domiciliary Visit At Nigh Visit, Secret Picketing Of The House Or Approaches To The House Of The Suspect, Periodical Enquiries By Police Officers Into Repute, Habits, Association, Income Or Occupation, Reporting By Police Constables On The Movements Of The Person, The Hon’ble Court Held That The Right To Privacy Is Not A Guaranteed Right Under The
In Widening The Scope Of Liberty Under Article 21, The Court Held That ‘Personal Liberty’ Is Contained In Article 21 As A “Compendious Term To Include Within Itself All Varieties Of Rights Which Go To Make Up The Personal Liberty Of Man Other Than Those Dealt With In Several Clauses Of Article 19(1)”.

3 AIR 1954 SC 300
4 1963 AIR 1295

Govind V. State Of MP5

The Hon’ble Supreme Court, Once Again Got A Chance To Dwell Into The Matter Of Right To Privacy, After 11 Years Of Kharak Singh Judgment, In Case Of Govind. This Time The Only Difference Was That The Bench Was Much Smaller Of 3
Govind Challenged The Validity Of Regulations 855 And 856 Of The Madhya Pradesh Police Regulations Related To Surveillance, Including Domiciliary Visits, Similar To Kharak Singh Vs State Of Uttar Pradesh. The Hon’ble Court Upheld The Validity Of The Regulations By Holding That Article 21 Was Not Violated Because The Impugned Regulations Were “Procedure Established By Law” In Terms Of The Said
Even Though Govind Lost The Case But While Accepting The Unifying Principle Underlying The Concept Of Privacy, The Hon’ble Court Noted That The Fundamental Nature Of The Right Is Implicit In The Concept Of Ordered
However, Remaining Cautious, The Hon’ble Court Also Observed That In The Absence Of Any Legislative Enactment, This Right Will Pass Through A ‘Case-By-Case Development’.
The Court, Speaking Through Matthew J. Said: “There Can Be No Doubt That The Makers Of Our Constitution Wanted To Ensure Conditions Favourable To The Pursuit Of Therefore They Must Be Deemed To Have Conferred Upon The Individual As Against The Government A Sphere Where He Should Be Let Alone.”