Centre for Communication Governance at NLU delhi

The Puttaswamy Effect: Exploring the Right to Privacy and Powers of Search in India

The Puttaswamy Effect: Exploring the Right to Privacy and Powers of Search in India

This paper explores the effects of the landmark Puttaswamy vs Union of India judgment of the Supreme Court on the right of search and seizure in India.
Indian criminal law gives wide powers to the State to conduct searches. These laws grant officials the power to conduct searches without a warrant, probable cause, or requiring the State to provide specifications on the places/persons to be searched, or the things to be seized. Such wide-ranging powers of the State have not, thus far, been constricted on the grounds of the right to privacy of individuals.

In fact, the Supreme Court of India has previously denied the existence of a constitutional right to privacy, particularly in the context of cases challenging the legality of searches. In 1954, in M.P. Sharma vs Satish Chandra, an 8-judge bench of the Court denied the right to privacy based on the absence of a specific provision in the India Constitution. It noted that “… we have nothing in our Constitution corresponding to the Fourth Amendment [of the Constitution of the United States] …” that would enable courts to differentiate between legal and illegal searches in India. A series of cases have subsequently relied on this decision to question the existence of a right to privacy under our Constitution.

However, in 2017, in the landmark privacy judgement of the Indian Supreme Court in Puttaswamy, a 9-judge bench of the Court finally reaffirmed the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. The Court also recognised that privacy was a part of the other fundamental rights and freedoms protected by Part III of the Constitution. Puttaswamy also laid down a four-prong test that should be satisfied to judge the constitutionality of any infringement on the right to privacy.

In light of the constitutional framework laid out by the Supreme Court in Puttaswamy, this paper examines the impact of the explicit recognition of the right to privacy on the law of searches. After briefly introducing the criminal justice system of India, it traces the history of the right to privacy in India vis-a-vis criminal laws. Here, it also examines the constitutional framework of the right to privacy in India, as enunciated by Puttaswamy. The paper thereafter analyses the law of search and seizure in India by comparing it to three different aspects of searches under the Fourth Amendment of the US Constitution. It does so because the Supreme Court, in MP Sharma, relied on the lack of an explicit provision protecting privacy (like the Fourth Amendment in the United States) in the Indian Constitution to deny the existence of a constitutional right to privacy.

The paper focuses on three issues concerning the breach of right to privacy through searches. First, it argues that the recognition of the right to privacy paves the way for searches in India to be governed by the requirements of ‘particularity’ and ‘probable cause’. Second, the paper seeks to demonstrate how the exclusionary rule, i.e., excluding evidence obtained through illegal searches, should be made part of the Indian law on searches in the post-Puttaswamy era. Third, it seeks to underscore the importance of warrants prior to the conduct of searches and argues for limiting warrantless searches. Consequently, it argues that the existing legal framework authorising searches must be reviewed in light of Puttaswamy and subsequent judgments on the right to privacy in India.


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