Right to privacy versus right to prosecute: Judicial interpretations of privacy in criminal investigations and trial procedures in India

Abstract

The interplay between the right to privacy and the state’s prosecutorial obligations in criminal law presents a legal paradox. Privacy is recognised as a fundamental right under Article 21 of the Indian Constitution; however, the state has a primary obligation to investigate and prosecute crimes in furtherance of justice under the Criminal Procedure Code (CrPC) 1973 (which has been replaced by Bharatiya Nagarik Suraksha Sanhita [BNSS] 2023) and the Indian Evidence Act 1872 (which has been replaced by Bharatiya Sakshya Adhiniyam [BSA] 2023). This paper reports on a study of judicial harmonisation of conflicts between opposing interests, considering evolving judicial doctrine in search and seizure, electronic surveillance, self-incrimination, witness protection, and media trial. Indian courts have thus tried to apply the theory of proportionality to ensure that privacy encroachment is justified, necessary, and minimally intrusive. It is not easy to achieve harmony in enforcing moral and constitutional laws, however, especially in matters such as digital privacy, biometric data collection, and intrusive investigative methods, namely, narcoanalysis and DNA profiling. There is sufficient jurisprudence of court produced in restricting arbitrary state action, but its application under privacy norms continues to be inconsistent, most notably regarding the application of procedural fairness and due process protections. At heart, this study considers judicial oversight as to some degree curbing privacy violations, but the absence of clear legislative frameworks leaves too much room for excessive state discretion. The research shows that by undertaking a comparative analysis with international legal standards, comprehensive statutory guidelines should be formulated to circumscribe privacy in criminal investigations and trials, compromising the competing rights of the data principal and the requirements of criminal justice. This paper critiques the post-Puttaswamy trajectory of Indian jurisprudence in the criminal justice domain, arguing that despite judicial efforts to balance state and data principal interests, the absence of codified safeguards renders privacy protections fragile. It draws on comparative legal frameworks (notably the US Fourth Amendment and the European Union’s [EU] General Data Protection Regulation [GDPR]) to highlight procedural innovations and proposes legislative reforms that prioritise transparency, oversight, and data principal autonomy in prosecutorial practices. This article is also included in The Business & Management Collection which can be accessed at https://hstalks.com/business/.