NISHTHA KHERIA & VARUN VIKAS SRIVASTAV | The Delhi High Court in Deepti Kapur v. Kunal Julka in its decision, analyzed the admissibility of illegally gathered proof in a divorce proceeding, hence touching against the interface among the evidence in marital conflicts and the right to privacy.
The genesis of the existing perplexity among admissibility of evidence and fundamental rights derives from the decision of the Supreme Court in Pooran Mal v. The Director of Inspection, where it was regarded that “relevancy is the only examination of the admissibility of evidence” and that “where there is no specific or implicit refusal in the Constitution, it is uncalled for and unfair to summon the essence of the Constitution to eliminate evidence”. This was in the setting of Section 14 of the Family Courts Act, 1984 which authorizes the admission of evidence to dispense with a discussion irrespective of whether such testimony would be permitted under the Indian Evidence Act, 1872 based on a personal fulfillment that the evidence would support the court to dispense with the conflict in line with the purpose of a quick settlement of marital conflicts[i].
The Marital Dispute Case
In the contemporary situation, the husband had presented evidence in the style of a compressed disk that indicated to an audio-video record of a discussion among the wife and her friend, in a separate private communication, which was supposedly privately taped in their room. The family court had confirmed the admissibility of the illegally obtained proof in the condition of the system of the Family Courts Act and the Pooran Mal decision. In the petition registered by the Petitioner at the Delhi High Court on allegations of infringement of privacy, the Justices braced the judgment of the family court, though computing that the progressive access to the confirmation of evidence in family conflicts is not to be regarded as permission to embrace criminal means to assemble evidence when it is not needed. The judge has even designated specific permissions to be succeeded while admitting evidence below Section 14, as a subject of discretion.
As have been verified by many case laws, Section 14 allows the Family Court to accept proof that it considers being of support to the problem at hand, depending on the details of each event, and the admissibility is not responsible for the difficulties of the Evidence Act. This is the only condition. The outline may also be thoroughly explained in the knowledge of the Report of the Committee on the Empowerment of Women in Functioning of Family Courts published in 2001, which repeats that the importance of family courts on conciliation and attainment of ethically acceptable outcomes, as argued to adherence to firm laws of method and evidence. Nevertheless, the uncertainty can be sensed in the Decision in obtaining the use of Section 14 to avoid the laws of evidence and neglecting the privacy rights of the Petitioner.
The Enigma of Right to Privacy
The Petitioner in her petition has pleaded inadmissibility and begged for supporting of her fundamental right to privacy. She additional requirements that even though the court may indicate evidence that may not comply with the Evidence Act, it cannot accept evidence that is prohibited as per the Constitution of India. The Supreme Court in the Justice K. S. Puttaswamy v. Union of India decision, identifying the right to privacy as a fundamental right, confirmed that an intrusion of privacy must meet the three-fold provision of :
(1) presence of the law,
(2) lawful state purpose and
(3) proportionality, which would be settled by installing a nexus among the purposes and means chosen.
This may have to be reviewed by the court ultimately. Moreover, since Puttaswamy’s decision simply exists privacy as a fundamental right, it does not inform us how to handle evidence that may come ahead as a consequence of its violation. Such a judgment is left to the consideration of the court[ii].
While the intention of the Family Courts Act may have been to assist family courts and conflict devices from the stringent laws throughout the admissibility of proof, the dilution of all models, including confirming evidence obtained through unlawful means, may also create irreversible injury to the implementation of fundamental rights.
This may also justify relooking at the Pooran Mal Judgment with the eyepiece of reasonableness and proportionality.
Right to Privacy Concerning other Countries:
The Right to privacy is a primary right consecrated under Article 21 of the Indian constitution. It has evolved into the lead of numerous discussions in different nations in the preceding few years, the precise interpretation of it has remained unclear in most situations. Here is a glimpse of how privacy laws are managed in distinct countries.
Germany-The country has developed notably cautious of the threat of governmental endeavours at encroaching into the personal lives of people. Over time the Germans have assured that privacy laws in the nation developed and remain updated to meet with the social and technological constraints of the course. At the instant, it persists in one of the most stringent nations to implement privacy laws.
United States-The US constitution does not specify the right to privacy explicitly, the Supreme Court has on numerous cases described multiple amendments to state that the right does exist. A federal law preserves the privacy of the social safety number from government questionings, except in instances of when the status of taxes being paid has to be delivered and in the case of child care.
Canada-The privacy law was redefined and formed in January 2012 when the Canadian government asserted that the natural law acknowledged the right to personal privacy as a “tort of interference upon privacy.”
Sweden-Sweden is likewise one of the first nations to have a specific statute of secrecy laws online. The 1973 Data Act preserved the privacy of individual data on machines. The right to protection of individual data is also ascertained in the Swedish constitution.
European Union– Article 8 of the European Convention on Human Rights (ECHR) affords a right to the security of one’s individual and family life directed to specific limitations.
International Standards
International human rights law grants a fair and comprehensive frame for the progression and assurance regarding the right to privacy. The right to privacy is cherished by the[iii]:
- Convention on the Rights of the Child
- International Covenant on Civil and Political Rights
- International Convention on the Protection of All Migrant Workers and Members of Their Families
- Universal Declaration on Human Rights
At the provincial level, the right to privacy is preserved by:
- American Convention on Human Rights
- European Convention for the Protection of Human Rights and Fundamental Freedoms
Other human rights mean include related prerequisites. The right to privacy is covered, for example, in the following:
- Arab Charter on Human Rights
- Council of Europe Convention for the Protection of Individuals concerning the Automatic Processing of Personal Data
- Council of Europe for the protection of privacy on the Internet
- European Union Data Protection Directive
- African Charter on the Rights and Welfare of the Child
- Asia-Pacific Economic Cooperation Privacy Framework
- Cairo Declaration on Human Rights in Islam
- Human Rights Declaration of the Association of Southeast Asian Nations
- Additional Protocol to the Convention for the Protection of Individuals concerning Automatic Processing of Personal Data regarding supervisory authorities and trans border data flows.
- African Commission on Human and People’s Rights Declaration of Principles on Freedom of Expression in Africa
Conclusion:
The notion of privacy has been considered for ages by scholars, anthropologists, sociologists, and legal philosophers. The point that individuals place on privacy is beyond question and exceeds geological, social, and racial borders. People’s demand for privacy and separate space is so significant to shaping connections with others and to conserving our understanding of oneself, that a society with a comprehensive necessity of individual privacy would be unbelievable… Given that want for privacy is a primary human character, the notion of a right to privacy arises from our inherent necessity for a life of dignity. At the global level, there is proof of an actual appreciation for the presence of some generic basic sources that merit international right assurance. The notion of a human right can be expressed as a part of a higher order than other contractual relations, such as contractual rights or legal entitlements.
The point that the right to privacy has for individuals is evidenced in the way in which the right remains to develop and emerges to accommodate society’s requirements. The legal representation as well as the outlines of what the personal right to privacy incorporates is still and will continue expanding as society approaches and as technology presents distinct approaches in which individual privacy is interested.
Society must discover a way to accommodate new developments to preserve its values and humanity. It is difficult to predict or even to envision future technologies, but positive strides are being constructed in the perception that the protection of privacy is everyone’s concern and everyone should be concerned in guarding the human values it embodies.
Nishtha Kheria and Varun Vikas Srivastav are the fourth year student of Amity Law School, Amity University, Noida. They can be reached at kherianishtha@gmail.com and varunvk14@gmail.com respectively.
[i] Carly Nyst, Tomaso Falchetta, The Right to Privacy in the Digital Age, Journal of Human Rights Practice, Volume 9, Issue 1, February 2017, Pages 104–118, https://doi.org/10.1093/jhuman/huw026
[ii] David H. Flaherty, On the Utility of Constitutional Rights to Privacy and Data Protection, 41 Case W. Res. L. Rev. 831 (1991) Available at: https://scholarlycommons.law.case.edu/caselrev/vol41/iss3/14
[iii] International and Foreign Cyberspace Law Research Guide, Treaties and International Agreements on Privacy & Data Protection, Last Updated: Jun 15, 2020 6:08 PM, URL: https://guides.ll.georgetown.edu/cyberspace
Photo Source: The New York Times
Cup of Court 