By Dr Swati Jindal Garg
It is said that a “relationship without privacy is like a garden without fences, vulnerable and unprotected.” The recent Madras High Court judgment held that idiom to account while declaring that “spousal privacy is a fundamental right and that documents violating it are not evidence”. The Madurai bench of the Madras High Court, under Justice GR Swaminathan, also said that “obtaining information pertaining to the privacy of the wife without her knowledge and consent cannot be viewed benignly. Only if it is authoritatively laid down that evidence procured in breach of the privacy rights is not admissible, spouses will not resort to surveillance of the other”.
This observation was made by the judge while hearing a civil revision petition filed by a wife whose prayer was that the call records produced by her husband as evidence must be rejected on grounds of her right to privacy.
The husband in this case had allegedly reached out to the telecom service provider and obtained the call records of his wife while the mobile phone with the sim card was in his custody. Citing that the relationship between a husband and a wife is based on trust, the judge also observed: “Trust forms the bedrock of matrimonial relationships. The spouses must have implicit and total faith and confidence in each other. Snooping on the other destroys the fabric of marital life. One cannot pry on the other. Coming specifically to the position of women, it is beyond dispute that they have their own autonomy. They are entitled to expect that their private space is not invaded.”
Clarifying further, the judge also said that the wife may maintain a diary, she may jot down her thoughts and intimate feelings. She has every right to expect that her husband will not read its contents except with her consent. The judge went on to elaborate that whatever applies to her diary will also apply to her mobile phone.
The couple had got married in 2003 and have two girl children. The husband had moved the Court seeking dissolution of marriage alleging cruelty, adultery and desertion on the part of his wife. He went all out to produce certain call records of his wife as evidence. whereafter the wife filed an application seeking rejection of the same call records. When the sub-court dismissed her application, the wife filed a revision petition before the High Court.
Pointing out Sections 63 and 39 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, and Section 79A of the Information Technology Act, 2000, the judge observed that those relying on any electronic record as a document in evidence must submit a certificate at the time of filing the electronic record. The judge also pointed out that the centre had admitted that till date, only a handful of entities have been notified as experts under Section 79A of the BSA. The judge said that, however, despite the set requirement, “it is surprising to note that no expert has been notified in the state of Tamil Nadu. It is beyond dispute that Tamil Nadu has good IT infrastructure and skilled manpower. Since BSA mandates 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,” the judge said.
Speaking on the credibility of the certificate filed by the husband, the Court said: “The certificate filed by the husband is no certificate at all… It is not the case of the husband that he wrote to the service provider and there was no response. The call history was downloaded from the Jio website. Therefore, only a person occupying a responsible official position in Jio could have issued the certificate,” the judge said.
The judge also observed that there has been a “clear invasion of the privacy right of the wife” as it is obvious that the husband had stealthily obtained the information pertaining to the call history of his wife. “He (the owner) was not the owner of the mobile device or the registered user of the sim card. He had clandestine custody of the same for probably a brief while,” the judge added.
Justice Swaminathan further directed the Ministry of Electronics and Information Technology to expeditiously notify a sufficient number of persons/bodies/entities as experts in Tamil Nadu. In the 17-page order passed by the judge, it was made clear that the law cannot proceed on the premise that marital misconduct is the norm and that it cannot permit or encourage snooping by one spouse on the other.
The right to privacy is synonymous with the right to be left alone. The Supreme Court had described privacy and its importance in the landmark decision of KS Puttaswamy vs Union of India in 2017, holding that right to privacy is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/she makes. The right to privacy is also protected as an intrinsic part of the right to life and personal liberty as guaranteed under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
This right, however, is subject to certain restrictions that can be imposed only by the State after passing the three tests:
- Firstly, such state action must have a legislative mandate.
- Secondly, it must be pursuing a legitimate state purpose.
- Thirdly, it must be proportionate i.e., such State action, both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.
Privacy, as a concept, is not new. Ancient Greece was divided into Polis and Oikos: the public or political sphere, and the private or familial sphere. However, the “right” to privacy is something that is more modern in nature. Although the right to privacy can include both physical privacy and privacy related to communications, with the advent of newspapers, television and the internet, the concept is now more about informational privacy. The question as to whether one can demand privacy from one’s own spouse has been dealt with time and again by the courts.
In a big question that was before the Karnataka High Court, the issue was whether the relationship of marriage trumps the right to privacy of a person. The High Court had said: “The relationship by marriage, which is a union of two partners, does not eclipse the right to privacy, which is the right of an individual and the autonomy of such individual’s right stands recognised and protected by the procedure of hearing contemplated under Section 33 of the Aadhaar Act.” Citing the apex court in the KS Puttaswamy case, the division bench had also said: “The right to privacy of Aadhaar number holder preserves the autonomy of the individual’s right to privacy which is conferred primacy and admits of no exception under the statutory scheme.”
This judgment is of great importance in the light of the fact that it sets the record straight that the social identification number of a person can be said to be an extremely personal information, and hence, cannot be disclosed or made to be disclosed before any other person/authority even at the instance of the spouse of the said holder without this/her consent. In the light of the facts of this case, the bench made it clear that consideration of case of the Aadhaar card holder by a responsible authority, as stipulated under the Aadhaar Act, cannot be diluted by delegating the same to an inferior authority as the process of the hearing and decision conferred under Section 33 is a non-delegable duty. Hence, in other words, a duty that has been conferred upon a High Court judge, cannot be delegated to another authority that is lower in rank.
In the current case, the bench took note of the fact that the wife in question had not arrayed the husband as a party to the proceeding due to which he did not get an opportunity of being heard before an order was passed against him by the single judge. The bench thus set aside the single judge’s earlier order and remitted the matter for a fresh consideration before him in light of Section 33 of the Aaadhar Act.
Even though it is said that marriage is a union of two souls, the judgments passed by the Karnataka High Court and the Madurai Bench of the Madras High Court goes a long way in maintaining that the right to privacy trumps all rights and not every information can be demanded as matter of right, even by virtue of being a spouse.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi