INTRA-CONFLICT OF FUNDAMENTAL RIGHTS FLOWING FROM ART. 21: RIGHT TO FAIR PROCEDURE OF ACCUSED
“Every accused is presumed to be innocent unless proven guilty”. The said principle forms the very basis of criminal jurisprudence in India. Fair trial is the heart of criminal jurisprudence. Denial of fair trial is crucification of human rights. It is ingrained in the concept of due process of law. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and the society. The concept of fair trial entails familiar triangulation of interests of the accused, victim and the society.
CrPC is the procedural law which defines the procedure which has to be followed in criminal cases. It ensures the accused gets a fair trial. Over the past years, Judiciary as a sentinel on the que vive, has been active in expanding the scope of various statues to include various aspects of criminal procedure. As a result, “right to speedy trial” was held to be a fundamental right implicit in the guarantee of life and personal liberty under Article 21 of the Constitution of India (hereinafter referred as “the Constitution”). Similarly, right to fair trial was read down to be impliedly contained in Article 21 of the Constitution. Some vital elements required by the principle of fair trial are- the right of the accused to know the criminal charges against himself and the evidence on which such criminal charges are based, including exculpatory evidence; the entitlement to respond to such evidence and any submissions made by the alternate party; the right to legal representation etc.
It is a universally accepted principle that everyone charged with any criminal charge shall be provided the opportunity to take defence and shall be facilitated with the preparation of his defence. It ensures that the accused gets full opportunity to put his case before the court. Our domestic law too recognized the same principle.
An important aspect of right to fair trial lies in providing enough opportunities to the accused for preparing his defence. For that purpose, an accused requires all evidences and other relevant documents of the case. According to S. 207 of CrPC, 1973, magistrate shall provide the accused all those documents on which the prosecution relied. Ordinarily, the court is of the view that accused shall be provided every evidence which can help him in preparing for his defence as also provided by S.207 of CrPC, 1973. However, there is an exception to this general provision. In case of voluminous documents, the magistrate is empowered to withhold supply of such document to the accused and only allow inspection. This is the only codified ground on which the court may refuse to provide any document to the accused.
In the recent case of P. Gopalkrishnan @ Dileep v State of Kerala & Anr., SC dealt with intra-conflict of fundamental rights flowing from Article 21. This case involved tussle between the right to fair trial of the accused and right to privacy of the victim.
In the aforementioned case, accused had filed a special leave petition before the SC, seeking copy of video clip stored in memory card. The memory card contained visuals and audio of sexual offence committed against the victim. Dileep, a south-Indian actor was accused of sexually assaulting and video-graphing a woman. The main issue involved in this case was whether the accused is entitled to the copy of the memory card under Section 207 of the CrPC.
The application filed for a copy of the said video was rejected by the magisterial court on the ground that it “would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim and also against the public interest.” However, the magisterial court allowed the accused to examine the said video in the court premises. The learned Single Judge of the HC of Kerala disallowed the same, in appeal. Kerala HC regarded the memory card as a material object and not document. Thus, it denied the access of its contents to the accused. Since S. 207, CrPC provides for supply of “other documents”. Therefore, the accused was not held entitled to the contents of memory card. However, the SC overruled judgment of the HC on this point. The Court relied upon precedents which held tape records of speeches, compact disc etc. as documents.
It is pertinent to note that S.3 of Indian Evidence Act (hereinafter referred as “Evidence Act) includes electronic record as documentary evidence. The contents of memory card qualify definition of electronic record given under S. 2(1)(t) of Information and Technology Act, 2000.
The Court further observed, “We must hold that the video footage/clipping contained in such memory card/pen-drive being an electronic record as envisaged by Section 2(1)(t) of the 2000 Act, is a “document” and cannot be regarded as a material object”.
According to the general rule, the court is obliged to provide accused all other documents relied upon by the prosecution. However, in the instant case court denied accused the access to copy of contents of memory card.
The court while dealing with the intra conflict between two fundamental rights, namely right to fair trial of accused and the right to privacy of the victim, took a balanced approach. It carved out an exception to the general rule of assisting accused by providing documents of case. The court held that ordinarily the said general rule will be followed but in certain cases where a serious offence like sexual offence is committed the accused shall not be given copy of the contents which tends to reveal identity of the victim or impinges on her chastity, dignity or reputation. That being the main reason why the SC protected victim’s right to privacy which was held to be an integral part of right to life under Article 21 of the Constitution. However, the court allowed accused to inspect the video in the court premises and to take the expert opinion of an independent agency.
The Court strike out a balance between two conflicting fundamental rights flowing from Article 21 of the Constitution. On one hand, the accused is guaranteed the right to fair trial while on the other hand there is right to privacy of the victim. Both are essential aspects of right to life under Article 21 of the Constitution. However, it will be quite unfair if a strait jacket formula is developed to determine which one of the abovementioned rights to be given preference over the other one in all cases. Thus, the decision may differ from case to case based upon different facts and circumstances.
The SC kept in mind the sensitivity of the offence and restricted the access of accused to the inspection of the video containing sexual offence of the victim. The court even permitted the accused to inspect the video in the court premises as many times he wants and he can inspect it along with his lawyer and IT expert in order to effectively.
In such cases where a serious crime is committed and the matter is extremely sensitive, it becomes important to safeguard the privacy of victim. Had the accused been entitled to the video, there would have been a threat of its contents being disseminated. Ultimately it would have caused gross ingression upon victim’s reputation, dignity, chastity and privacy. It could cause irreparable damage not only to the victim but to its family and society at large.
People are “harmed in a significant, cognizable way when their personal information is distributed against their will.” A victim’s right to control information about him or herself “constitutes a central part of the right to shape the ‘self’ that any individual presents to the world. It is breached most seriously when intimate facts about one’s personal identity are made public against one’s will….in defiance of one’s most conscientious efforts to share those facts only with close relatives or friends.” “The essence of privacy is no more, and certainly no less, than the freedom of the individual to pick and choose for himself the time and circumstances under which, and most importantly, the extent to which, his attitudes, beliefs, and behavior and opinions are to be shared with or withheld from others.”
Whenever the question concerning conflict of fair trial and privacy comes up, the decision of the court may differ from case to case based on different circumstances. Thus, it becomes the duty of the court to strike a balance between rights of both the parties as has been held in Asha Ranjan and Mazdoor Kisan Shakti Sangathan.