On an October evening in 1964, two doctors and several policemen sat around a landline in a Mumbai suburb, intently listening to a conversation between two doctors and an officer of the coroner’s court, which is responsible for the conduct of post-mortems for police investigations. Supervised by the police, the doctors were negotiating the mechanics of a pay-off to the coroner court officer to tweak a postmortem report and escape liability for medical negligence.

Recording the conversation through a large magnetic tape recorder attached to the doctors’ phone was Assistant Commissioner Sawant. His hope was that the recording would help secure the conviction of the coroner court officer for corruption.

Little did Sawant know that his recording of a phone call would set a judicial precedent that would come to haunt India’s post-colonial criminal jurisprudence, incentivising an unbridled invasion of the privacy of Indians for decades to come.

Sawant’s phone conversation recording was challenged in the Supreme Court in the 1973 case of RM Malkani vs State of Maharashtra as illegal phone tapping and consequently liable to be excluded from evidence. The defence argued that in attaching the tape recorder to a phone without proper authorisation, the police had violated the Telegraph Act, which prohibits tampering with telecom infrastructure for intercepting communications.

As was the case in jurisdictions like the United States at the time – the only prominent democracy in 1973 where illegally obtained evidence is inadmissible – the accused sought to exclude the illegally recorded phone conversation from being used against them in court. It may seem odd to suggest that the court should refuse to consider relevant evidence simply because it had been obtained illegally. The person committing the illegality could be separately punished, but once the evidence was available, courts should be able to review it.

However, the exclusion is critical to a fair trial. In any criminal trial, an accused is at a significant disadvantage compared to the State, and likely in the physical custody of the police. Creating a perverse incentive for the State to commit crimes to extract evidence in such cases increases the probability of using illegal and despicable means, such as confessions coerced through torture.

Representative image. Credit: PTI.

But in the case of RM Malkani’s case, Justice AN Ray went against conventional judicial wisdom, and, relying on an 1861 British ruling, held “it matters not how you get it; if you steal it even, it would be admissible in evidence”. What Ray did not acknowledge was the contrary position in the United States and that even the British had since modified their position, only permitting a narrow set of circumstances where illegally obtained evidence could be used against an accused.

In the US, for instance, the Fourth Amendment to the American Constitution precludes admission of evidence obtained from an unauthorised search or seizure.

But Ray’s ruling has since made its mark in several cases – consider the numerous allegations of police misconduct in high-profile cases ranging from the arrest and death sentencing of Afzal Guru in the 2010 Parliament terror attack to the more recent cases involving Opposition politicians and Central agencies, like the Enforcement Directorate.

In December last year, for instance, the Jammu and Kashmir High Court upheld the rationale of the RM Malkani ruling while adjudicating on the preventive detention orders issued during the abrogation of the former state’s special status under Article 370 of the Constitution in August 2019.

What is more concerning now is how this ruling will play out as new surveillance technologies are deployed.

Smartphones, to start with, are password protected but there have been frequent incidents of police demanding passcodes and access to phones, including during routine stops on the street – like the Hyderabad police in September.

While the legal position on this matter is not settled, there is a strong argument that the practice of law enforcement seeking passwords or biometric information – face ID or fingerprints – to access smartphone data of the accused violates the right against self-incrimination and the right to privacy. This practice has continued unabated: when the police and officials of central agencies raided the homes of NewsClick journalists on October 3, they also seized devices, including the phones, of some employees,

This is because even if the privacy protections precluding access to a person’s smartphone and personal computers were enforced by a court or guaranteed by legislation, the ruling in the RM Malkani case would permit the use of any evidence gathered from such an unlawful search and seizure. An accused in such a case will not be protected from any adverse material found on their phone from being used against them. The prospect of the police officer being charged with a separate offence subsequently does not effectively deter such actions since enforcement in these kinds of cases has been fairly limited.

Security personnel at the 'NewsClick' office in October. Credit: PTI.

Crucially, emerging artificial intelligence-based surveillance technologies risk worsening the existing situation. Chief among these is real-time biometric tracking. Developments in artificial intelligence can leverage the current infrastructure of face-detection cameras enabling real-time identification tracking of thousands of individuals simultaneously.

Such infrastructure is coming up fast in major cities across the world. While today, the technology can be used to identify individuals but the process is time-consuming and requires sifting through large volumes of data. In most cases therefore, identification and tracking of only specific individuals can be undertaken and real-time tracking is difficult to accomplish. Though not ideal from a privacy standpoint, this constraint places natural guardrails against misuse, such as the need to enrol relatively large number of people in the analytics process and the time taken for completing the analysis.

Real-time biometric identification systems will enable round-the-clock tracking of thousands of individuals simultaneously. Such technologies will invariably be deployed to track and gag dissidents, journalists and Opposition politicians. With a precise map of someone’s life, it will not be hard to selectively use circumstantial information and people’s imperfect lifestyles to malign reputations.

The deployment of such systems will be sold to the public as a panacea for national security with “safeguards” designed against abuse. If the past is any guide, such safeguards will be broadly worded to allow for wide ranging discretion to the State or law enforcement. Even where these safeguards work, the incentives to abuse the system for advantage will remain. A law enforcement agency could always choose to breach the limited safeguards since the resulting information will still be available for use against an accused or suspect, thanks in large part to the RM Malkani case.

The legal theory that permits illegally obtained evidence to be admissible in a case may not itself be responsible for most emerging challenges to privacy. However, as advances in surveillance technologies make them more pervasive, the precedent set by RM Malkani further skews the balance in favour of the State and against the individual. It fosters a fundamentally undemocratic and paternalistic ideology that requires people to be transparent to the State.

Tragically enough, Ray could have still convicted the corrupt officer without permitting the admissibility of illegally obtained evidence – the police recorded the call at the doctors’ end with their consent and it could be argued that such a recording did not constitute an interception in violation of the Telegraph Act. Ray did note this fact but nonetheless went on to hold that all illegally obtained evidence remains admissible. Such a blunt force approach to individual rights is typical of Indian jurisprudence. Often disgusted by the crime at hand, citizens tend to cede ever greater authority to law enforcement without regard for its future consequences or necessity – consider, for instance, the expansive authority of the Enforcement Directorate and the vast powers of the draconian Unlawful Activities Prevention Act.

We are increasingly creating a lopsided two-track privacy framework that enforces rigorous protections in private contracts, but forces the individual to be subordinate and transparent to the interests of the State. For privacy to be a real right, this approach needs to end and India needs to follow in the footsteps of other democracies to enforce sensible limits on the rights of the State.

Prashant Khurana is a special situations attorney based out of New Delhi.