BIOMETRICS AS EVIDENCE: RIGHT TO PRIVACY

AND RIGHT AGAINST SELF INCRIMINATION

-A CRITICAL ANALYSIS

By
Y. BINDU MADHAVI
Judicial Magistrate of First Class
Guntur.

Under the guidance of

Prof. N. NIRMALA
Professor of Law
Dr. B. R Ambedkar College of Law,
Andhra University, Visakhapatnam

THESIS SUBMITTED TO THE ANDHRA UNIVERSITY,

VISAKAPATNAM FOR THE AWARD OF THE DEGREE OF

DOCTOR OF PHILOSOPHY IN LAW

MARCH 2018
 CONTENTS
PAGE NO
ABBREVIATIONS vii
LIST OF CASES ix

CHAPTER I : INTRODUCTION 1-34

CHAPTER II: BIOMETRICS – ORIGIN AND DEVELOPMENT 35-65

CHAPTER III: USE OF BIOMETRICS AS EVIDENCE 66-109

CHAPTER IV: RIGHT TO PRIVACY : A COMPARATIVE LAW

WITH SPECIFIC REFERENCE TO INDIAN
CONTEXT 110-147

CHAPTER-V: RIGHT AGAINST SELF-INCRIMINATION :

COMPARATIVE LAW- SPECIAL INSIGHT
TO INDIAN SCENARIO 148-187

CHAPTER-VI: BIOMETRIC EVIDENCE VERSUS RIGHT TO

PRIVACY AND RIGHT AGAINST
SELF- INCRIMINATION 188-244

CHAPTER-VII: CONCLUSION AND SUGGESTIONS 245-273

BIBLIOGRAPHY 274-279

ANNEXURE -I ARTICLE 1
ANNEXURE -II ARTICLE 2
 ELABORATE CONTENT

CHAPTER – IBIOMETRIC EVIDENCE: RIGHT TO PRIVACY AND RIGHT

AGAINST SELF-INCRIMINATION- A CRITICAL ANALYSIS
1.1. Introduction 1
1.2. The evolution of the Biometrics 2
1.3 Issuses and Challenges of Biometric data 7
1. 4. Right to self Incrimination and Privacy 8
1.5. Biometrics and Challenges to Right to Privacy 10
1.6. Biometrics and implications -Right against self incrimination 16
1.7. Research Questions 21
1.8. Objectives of the Study 21
1.9. Scope 22
1.10. Limitations 22
1.11. Hypothesis 23
1.12. Research Methodology 24
1.13. Source of data and data collection. 25
1.14. Review of Literature 25
1.15. Scheme of the Presentation: 33

CHAPTER – II
BIOMETRICS – ORIGIN AND DEVELOPMENT
2.1. Introduction 35
2.2. Early History and Timeline of Biometrics History 40
2.3. Pros and Cons of Biometrics 46
2.4. Types of Biometrics 48
2.4.1. DNA matching – 48
2.4.2. Advantages of DNA as a biometric 48
2.4.3. DNA Technique Procedures 49
2.4.4.Ear Biometric - 51
2.4.4.1.Advantages of ear biometric identification 52
 2.4.5. Eyes IRIS Recognition - 52
2.4.5.1. Advantages of iris as a biometric 53
2.4.5. Eyes-Retina Recognition – 54
2.4.6. Face recognition - 54
2.4.6.1.advantages of face as a biometric 55
2.4.7. Fingerprint recognition– 56
2.4.7.1. Advantages of fingerprints as a biometric 57
2.4.8. Hand geometry Recognition - 58
2.4.9. Gait – 59
2.4.10. Odour - 59
2.4.11.Signature Recognition – 60
2.4.12. Typing Recognition – 62
2.4.13. Vein recognition - 63
2.4.14. Voice /Speaker recognition- 63
2.5. Conclusion: 64

CHAPTER – III
USE OF BIOMETRICS AS EVIDENCE
3.1. Use of Biometrics identification as evidence: 67
3.2. Use of Biometrics as Evidence in Various Countries: 68
3.3. Instances of DNA evidence in criminal cases 69
3.4. Biometric Evidence in Criminal Cases in India 70
3.5. The fundamental principles of fingerprints are: 71
3.6. Judicial System in India 72
3.7. Ancient India 73
3.8. Medieval India Judicial Developments 76
3.9. Modern India- the Evidence Act 76
3.10. The Law of Evidence and Use of Biometrics Evidence 77
3.11. Admissibility of Electronic Evidence: 79
3.12. Section 65A and 65B of IEAct. 82
3.13. Presumptions regarding electronic reference:- 85
3.14. Gazettes in electronic form:- 85
3.15. Electronic Agreements:- 85
3.16. Provisions relating to a Secured Digital Signature 85
3.17. Electronic Messages:- 86
3.18. Biometrics and cultural, social and legal considerations: 101

CHAPTER – IV
RIGHT TO PRIVACY : A COMPARATIVE LAW WITH SPECIFIC REFERENCE TO
INDIAN CONTEXT
4.1. Introduction 110
4.2. International Instruments On Right To Privacy 110
4.3. Right To Privacy In The United States Of America. 112
4.4. Right to Privacy in the United Kingdom 117
4.5. Right to privacy In Australia 120
4.6. Right to Privacy In Canada 123
4.7. Right To privacy In Russia 125
4.8. Right To Privacy In Pakistan 126
4.9. Right To Privacy In Bangladesh 129
4.10.Right To Privacy In India 130
4.10.1.Hon’ble Supreme Court On Right to Privacy 132
Kharak Singh v. State of UP AIR 1963 SC 1295: 132
Gobind v. State of M.P(1975) 2 SCC 148 132
State v. Charulata Joshi, (1999) 4 SCC 65 133
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264 133
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301 133
In Mr. ‘X’ v. Hospital ‘Z’,(1998) 8 SCC 296) 134
District Registrar and Collector v. Canara Bank,(2005) 1 SCC 496 134
Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621 135
4.10.2. From the Bench: 138
4.10.3.From the petitioners: 140
4.11. Changing scenario of Right to Privacy in India 141
4.12. Conclusion 147
 CHAPTER – V
RIGHT AGAINST SELF-INCRIMINATION : COMPARATIVE LAW- SPECIAL
INSIGHT TO INDIAN SCENARIO.
5.1. Introduction 148
5.2. International Instruments on Right Against Self Incrimination 152
5.3. Right against self-incrimination in United States of America 153
5. 4. Right against self-incrimination in United Kingdom 160
5. 5. Right against self-incrimination in Australia 162
5. 6. Right against self-incrimination in Canada 164
5.7. Right against self-incrimination in Canada Russia 167
5.8. Right against self-incrimination in Pakistan 168
5.9. Right against self-incrimination in Bangladesh 168
5.10. Right against self-incrimination in India 168
5.10.1 The Right to Silence 182
5.11 Conclusion 186
CHAPTER-VI
BIOMETRIC EVIDENCE VERSUS RIGHT TO PRIVACY AND RIGHT AGAINST
SELF- INCRIMINATION
6.1.Introduction 188
6.2.Right To Privacy Under Human Rights Discourse 188
6.3. Creation of Unique Identification Authority of India (UDIDAI) 194
6.3.1. Aadhaar Act, 2016 195
6.3.2. UIDAI – Powers and Functions Under Aadhaar Act, 2016 197
6.3.3. Offences and Penalties Under the Act 200
6.3.4. Supreme court verdicts on Scope and Application of UID Act 201
6.4. Principles of Admitting Scientific Evidence 204
6.4.1. United States (US) Courts 204
6.4.2. The Guidelines are as follows: 205
6.4. United Kingdom(UK/EU) 207
6.5. Position in India 208
6.5.1.Protection of and Implications of Biometric Data under UID Act 212
 6.5.2. Biometric Identification - Issues and Challenges 213
6.5.3 Biometric identification and Immunity against self-incrimination in India 214
6.5.4. Biometric Identification and right to privacy in India 221
6.5.5. Biometric Identification – New challenges in India 224
6.5.6. DNA and Forensic Evidence 226
6.5.7. The DNA Test and Right against Self Incrimination. 231
6.5.8. Admissibility of the DNA evidence 232
6.5.9. Aadhar Controversy 233
6.5.10. Arguments in favour of Aadhaar 234
6.5.11. Arguments against Aadhaar 235
6.5.12. The Issues Raised by Human Rights Organisations 236
6.6. Conclusion: 243

CHAPTER – VII
CONCLUSION AND SUGGESTIONS
7.1 Summing up of the research work 245
7.2 Conclusion 256
7.3. Right to privacy 256
7.4. Right against self-incrimination 258
7.5. Testing Of Hypotheses 264
7.6. Suggestions 267

BIBLIOGRAPHY 274

ANNEXURE - I Article1
ANNEXURE - II Article2
 CHAPTER – I

INTRODUCTION

Rightful liberty is unobstructed action according to our will within limits drawn
around us by the equal rights of others. I do not add ‘within the limits of the law’ because
law is often but the tyrant's will, and always so when it violates the rights of the
individual.

-Thomas Jefferson

1.1. Introduction

Every Human being on the earth has a unique feature distinct and different from
the other human being; syntactically left part and right part of the human anatomy have
its own variations and does not tally with each other. These specific characters of each
human being make him unique. In good olden days, there was no technology to find out
these features or characters of humans. These unique qualities now became a tool to
identify accurately.

Now a day from the attendance of the school child to the stage of pension to old
age, in every walk of life, each one of us is using any of this biometrics for our
identification. These unique physical features are called Biometrics. It is a unique
physical characteristic that can be used to identify the individuals. There are various types
of biometric data which includes fingerprints, voice prints, facial recognition, and retina
or iris scans, gait etc. However, there are other kinds of technologies have been
developed in sciences and technology such as electrocardiographic rhythms and body
odour.

Sources form ancient reveals that the human race has evolved on various stages
from small primitive societies where every person in the community acquainted with
other. In the present complex society where each one has became a global citizen and
intertwined with other people and places. In this context accurate identification has
become very important issue of identification of persons. The question of authentication

1
and identification of a person has become a challenging task now. According to Gertude
Stein’s quote “rose is a rose is a rose is a rose1” which summaries the essence of the
difficulty of positive identification problem as an identity of person is much woven into
the fabric of everything that a person represents and believes that the answer to the
identification of a person transcend the scope of an engineering system and solution only
be brought in philosophical realm2.

Historically, biometrics is based on ideas that were originally conceived centuries

ago. The oldest form for recognition by humans was face. The concept of recognition is
also seen in behavioral-predominant biometrics such as speaker and gait recognition.

The use Biometric identification done in 1870 when a Frenchman, Alphonse

Bertillon, started to use it in a Paris prison for registering and identifying all detainees. In
the recent times biometrics data has became prominent and important all over the world.

1.2. The evolution of the Biometrics

The term “biometrics” is derived from the Greek words “bio” (life) and “metrics”
(to measure). It is a fact that formal identification is a prerequisite for development in the
modern world. The concept and word biometrics is the technical term for body
measurements and calculations. It refers to metrics related to human characteristics.
Biometrics authentication is used in computer science as a form of identification for
access or control3. The technology also used to identify individuals in groups that are
under surveillance4.

The Science and technology has further developed biometric based forensic
evidence in last two decades. Due to significant advances in the field of computer

1
The sentence "Rose is a rose is a rose is a rose." was written by Gertrude Stein as part of the 1913
poem "Sacred Emily",In that poem, the first "Rose" is the name of a person. Stein later used
variations on the sentence in other writings, and "A rose is a rose is a rose" is among her most
famous quotations, often interpreted as meaning "things are what they are", a statement of the law of
identity,
2
Anil K. Jain, Ruud Bolle, Sharath Pankant (Ed), Biometrics: Personal Identification in Networked
Society., Spriongers, USA, 2006
3
In the fields of physical security and information security, access control is the selective restriction
of access to a place or other resource
4
Surveillance is the monitoring of behavior, activities, or other changing information for the purpose
of influencing, managing, directing, or protecting people

2
processing the Biometric identifiers are the distinctive, measurable characteristics used to
label and describe individuals. The Biometric identifiers are categorized as physiological
versus behavioural characteristics. Physiological characteristics are related to the shape of
the body, such as include fingerprint, palm veins, face recognition, DNA, palm print,
hand geometry, iris recognition, retina and odour/scent and a few others as well.
Behavioural characteristics are related to the pattern of behaviour of a person, including
but not limited to typing rhythm, gait, and voice. Technology has developed several types
of biometric identifications in the recent past which include visual and behavioural
biometrics. Biometrics can be divided into two categories: (1) Physiological and (2)
behavioural.

The following are the different Types of Physiological Biometric Technologies:

1. DNA

2. Ear Shape

3. Facial Recognition

4. Finger Scanning

5. Iris Recognition .

6. Personal Signature

7. Retinal Scan

8. Hand Geometry

9. Keystroke

10. Vein Pattern

11. Voice Recognition

12. Body Odour

(2) Behavioural measurements are:

3
1. Typing and signature recognition

2. Voice/Speaker recognition

3. Gait recognition

In brief, a biometric system is a pattern recognition either physiological or

behavioural characteristic which person possesses. These technologies are increasingly
being used for surveillance purposes. The broad range of techniques can be used in
different domains, ranging from State security to the comfort of individuals. The
developing world has attracted much attention and interest from the biometric technology
industry, which views these countries as an area of growth for the industry. Technology
seen as a tool to facilitate socio-economic and political development, an array of sectors
in the biometrics field have been deployed, ranging from national identification systems
in India and Argentina, delivery of social services including health services used in Peru
and Pakistan, on same lines electoral management used in Kenya and the Philippines, aid
delivery and social protection programmes as those run by the World Bank and UNHCR,
and border management such as the biometric passports and visas introduced in Senegal.

When a person identity with another is consider as personal identification. The

issue relating to resolving identity of any person can be divided into two basically distinct
types of problems with different inherent complexities, (1) Verification; (2) Recognition
or identification. Authentication refers to problem of confirming or denying person’s
claimed identity that who the person is claimed to be. Identification refers to problem of
establishing person’s identity either from a set of already known identities or otherwise.

In various government and private domains promoted biometric recognition as a

technology that can help to identify terrorists, provide better control of access to physical
facilities, financial accounts and increase the efficiency of access to services and their
utilization. Biometric recognition has been applied for identification of criminals, patient
tracking in medical informatics, and the personalization of social services, among other
things.

4
 Biometric technologies are used almost exclusively for the purpose of
identification or authentication/verification. Identification is also often described as one-
to-many matching. For example, Automatic Fingerprint Identification Systems (AFIS)
which match a single finger image against a database of images. For the purposes of
identification, a single biometric sample is compared to a collection of many other
samples that can be linked to the sample owner’s identity with the hopes that a match can
be found. For authentication/verification, a single biometric sample is compared to a
single sample (one-to-one) from a collection to verify or authenticate that the two
samples have been obtained from the same individual. For policing organizations, both
uses of biometrics may be required. Authentication/Verification is often part of the
security procedures that an organization may use to control access or to monitor
activities.

Biometric technology can be used for several purposes. They can help to make
operations, transactions and everyday life both safer and more convenient. The
application of this technology helps in financial identification, verification and
authentication in commerce. It also helpful for banking, shopping. Recent innovations in
mobility and connectivity have created a demand for biometrics in the homes and pockets
of consumers. The rise of the Internet of Things and connected various other car
technologies, biometrics are finding their way into the homes and automobiles etc.

The other utilities with biometrics involve fingerprint and biometric locks, health
care biometrics, logical access control, time and attendance of employees, border
control/airports and in law enforcement as well. The biometric technology is very
important to identity management innovations, which have sprouted from the beneficial
relationship. Today, law enforcement biometrics are truly multimodal; fingerprint, face
and voice recognition all play their own unique role in enhancing public safety and
tracking wanted persons.

There are various individual identification cards and the ID number in usage to
provide security at different delivery/access points like bank accounts, credit accounts,
utility records etc.

5
 Biometric authentication is the process of comparing data for the person's
characteristics to that person's biometric "template" in order to determine resemblance.
Biometrics allows a person to be identified and authenticated based on a set of
recognizable and verifiable data, which are unique and specific to them. The reference
model is first stored in a database or a secure portable element like a smart card. The
same data compared to the person's biometric data to be authenticated. The aim is to
capture an item of biometric data from this person. It can be a photo of their face, a
record of their voice, or an image of their fingerprint then the data will compared to with
other persons database.

It is accepted fact that without identity of proofs, individuals often cannot exercise
basic rights and access to services necessary for financial and physical security,
employment, or democratic participation. In order to provide certain benefits, the
governments and/or donors cannot effectively ensure that funds reach intended
beneficiaries. In such circumstances, the biometric identification is considerably more
accurate and secure than traditional methods of identification, authentication and also
accountable in related transactions. When combined with technology such as mobile
phones, biometrics can help streamline and facilitate payments and services in remote
locations.

These applications are predominantly introduced by governments, as the

biometric enrollment and management of a population's biometric data required for a
tightly regulated legal and technical framework. Their use in countries governments have
many utilities to deliver. In Indian context, these biometric ID cards, fingerprints are used
to confirm the identity of the bearer of the card for before for access to governmental
benefit schemes, particularly to the people living below poverty line. Their
identification/authentication application is being widely deployed for the issuance of
electronic passport (e-passport)

In 1936 the United States has introduced social security number (SSN) to
facilitate social security for individuals. Gradually smartcard/RFID emerged in the
advanced security systems. Recently this technology with fingerprint has created interest
in this regard and has become an ultimate identification technology of an individual. In

6
United States, Social Security Number (SSN) was in demand till 2006 because of its wide
spread usage, but the problem started there onwards due to identity thefts with Social
Security Number. In order to overcome these problems, the United States has shifted to a
unique identification (UID) number with biometric. The UID number is a random
number, where guessing a number is virtually impossible. UID with biometrics will
ensure uniqueness with a high degree of accuracy covering a wide range of population.

The Government of India (GOI) has constituted the unique identification authority
of India (UIDAI) to provide every resident has a unique identification number. UID
number is a 12 digit random number, serves as a proof of identity and address, anywhere
in India and will remain valid for life. UID also referred as Aadhaar. The Indian
government issued directions for linking Aadhaar number for many citizen services such
as banking, mobile phone, gas connections etc, the government is committed to register
UID for whole population in the country. Till date more than 119 Crores people have
enrolled under UID, covering more than 99% of the Indian adult population.

1. 3. Issuses and Challenges of Biometric data

In spite of substantial effort, however there remain unresolved questions about the
effectiveness, management of systems for biometric recognition, as well as the
appropriateness and societal impact of their use. Moreover, the general public has been
exposed to biometrics largely as high-technology gadgets in spy thrillers or as fear
instilling instruments of state or corporate surveillance in speculative fiction. Therefore,
naturally and unsurprisingly, biometric technologies raise privacy issues of human beings
all over the world. One cannot be certain for which purpose such surveillance is
specifically applied by way of entrenching into with human rights relating to privacy.

Recent reports of the misuse of Aadhaar – the 12-digit unique identification

number that the Indian government is pressuring all residents to obtain have brought back
concerns about the privacy and security of the project. In the recent past six employees of
telecom service provider Reliance Jio were arrested for the fraudulent use of fingerprints
to activate and sell SIM cards.

7
 Due to overwhelming and ever increasing rate of adoption of biometrics, the
issues associated with performance of biometric systems, immunity against spoofing
attacks, and security of biometric data are major areas of concern that need to be
addressed and improved. Biometrics makes use of human anatomical or behavioural
patterns; these patterns can be fabricated by criminals, and can be presented to a
biometric system to bypass the security. Risk factors associated with the use of biometric
identification can also be dependent on the biometric modality employed. Thus, their
applications have its own negative impact on the people of a given country. Therefore, it
is essential to understand the security risks of biometric technologies in order to develop
relevant policy and legislative frameworks. To minimise the potential negative on
individuals and the society at large.

Depending on the nature and usage of a given biometric technology, might violate
the constitutionally guaranteed rights specifically the right to privacy. The application
and using biometric technology to identify and monitor people raises human rights
concerns these circumstances, the personal and permanent nature of the physiological
features that are analyzed by a biometric system raising an inherent tension with privacy
interests of an individual. When biometrics is applied for surveillance purposes, the
concerns for individual privacy naturally undermine.

1. 4. Right to self Incrimination and Privacy

Though biometrics data is useful and convenient, but the technology could
potentially undermine the constitutionally guaranteed rights, which prohibits the
government from compelling a witness to testify against herself. The right against self-
incrimination finds its earliest embodiment in the medieval law of the Roman church in
the Latin maxim ‘Nemon tenetur seipsum accusare’ which means that ‘No man is obliged
to accuse himself’. The right gradually evolved in common law through protests against
the inquisitorial and manifestly unjust methods of interrogation of accused persons, back
in the middles ages in England5. In Indian context, the provision guaranteeing right

5
180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right
to
Silence, 3, (2002).

8
against self incrimination is one of the fundamental canons of common law criminal
jurisprudence, which has been incorporated in the Constitution of the United States under
the Fifth Amendment which reads that ‘No person…shall be compelled in any criminal
case, to be a witness against himself,’ and thereafter in the Indian Constitution.

Thus, the very nature of biometric technologies can lead several Challenges:

1. Privacy and right against self-incrimination challenges

2. The data processed may be at risk of being misused and is subject to fraud;

3. It can result in misidentification and inaccuracies;

4. Its nature renders it exclusionary;

5. Its unregulated retention raises questions function creep and the safety of the data
itself.

Article 17 of the International Covenant on Civil and Political Rights is primary

source of the right to privacy6. Most of the states are engaging in advanced surveillance
and parties to that treaty. The scope and content of the right to privacy, in the context of
surveillance, is not well defined. This is problematic, given the Human Rights
Committee’s (HRC) view that “governmental mass surveillance is emerging as a
dangerous habit rather than an exceptional measure”.

Three principal aspects of biometric surveillance engage Article 17: first, its
character as a form of surveillance; second, its character as a form of medical
examination; and third, the data retention that it requires. Although the literal terms of
article 8 of the ECHR and article 17 of the ICCPR differ, Article 87 is a useful guide for
interpreting article 17. Foremost, biometric surveillance is a species of surveillance.
Surveillance of persons who are owed obligations under the ICCPR typically engages

6
Article 17 (1) . No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and reputation () . Everyone
has the right to the protection of the law against such interference or attacks.
7
Article 8 (1) . No one shall be held in slavery; slavery and the slave-trade in all their forms shall be
prohibited. 2. No one shall be held in servitude.

9
article 17. This article does not prohibit states from conducting surveillance; rather, the
lawfulness of a given surveillance program will depend on its specific circumstances.
Addressing the issue of metadata surveillance, “the resolution identified the risk that
certain personal information may be captured, including insights into an individual’s
behaviour, social relationships, private preferences, and identity” In its 2014 report, the
HRC echoed the concerns about metadata surveillance, given that it “allows very precise
conclusions to be drawn concerning the private lives of the persons whose data has been
retained” That logic applies to biometric surveillance.

Biometric surveillance is capable of revealing personal information. Once a

person has been identified, an integrated biometric system could use that person’s
identity to monitor their activities. Moreover, an integrated biometric surveillance
system, including public CCTV systems, could readily establish information about a
person’s travel, employment, social, and cultural habits. Further, such a system could also
reveal certain health information, for example by way of iris scan. It is uncontroversial
that health information is personal information, for the purposes of the right to privacy.
More advanced biometric systems, such as the ECG or X-Ray biometric systems, would
provide even more information about a person’s health.

1.5. Biometrics and Challenges to Right to Privacy

Privacy as a concept involves what privacy entails and how it is to be valued.

Privacy as a right involves the extent to which privacy is (and should be legally
protected). “The law does not determine what privacy is, but only what situations of
privacy will be afforded legal protection.8”

In a historical sense, privacy is a civil liberty essential to individual freedom and

dignity. The right to Privacy is the hallmark of a cultured existence, as in the words of
Louise Brandeis, J “the right most valued by civilized men”9. At the international level,
the International Covenant on Civil and Political Rights for which India is a signatory,
and more recently, the European Convention of Human Rights recognizes this right.

8
Olmstead v United States,277 U.S. 438, 478
9
Article 8 of the European Convention on Human Rights & Article 17 of the International Covenant
on Civil and Political Rights, 1976)

10
However, the common characteristics underlying this are its being available against the
state, as is the case with other human rights.

In the U.S.A., the common law did not recognize any right to privacy. So, courts
in the United States did not consider privacy as a right to be protected until the eve of the
twentieth century. The need for a law to protect privacy was articulated as early as 1890
when an article titled ‘The Right to Privacy’ was published by Warren and Brandies in
Harvard Law Journal, laid the foundation of privacy right in the USA. Though there were
hundreds of cases related to right to privacy came to the courts, the first higher American
court to deal with the right to privacy was a New York appellate court in 1902 in
Roberson v. Rochester Folding Box Co.

In most of the common law constitutions, right to privacy is not given expressly
to their citizens, but derived from judicial review and court decisions. The term "privacy"
has been described as the rightful claim of the individual to determine the extent to which
he wishes to share of himself with others and his control over the time, place and
circumstances to communicate with others. It means his right to withdraw or to
participate as he sees fit. It also means the individual's right to control dissemination of
information about himself; it is his own personal possession. Privacy has also been
defined as a Zero-relationship between two or more persons in the sense that there is no
interaction or communication between them, if they so choose. Some scholars contend
that the whole notion of privacy has referred to the Right to Privacy as the absence of
unauthorized interference with a person’s seclusion of himself or his property from the
public. The Numerous legal and moral philosophers have suggested that privacy is valued
because it satisfies a number of primary human needs.

The Indian Constitution, in comparison, fails to expressly recognize the Right to

Privacy. The logical place to start any investigation into the minds of our founding
fathers is the Constituent Assembly Debates. It is worth to look into the speech by R. K.
Sidhwa in respect of right to privacy in Constituent Assembly debates:

“I might also state that the Committee had suggested that the secrecy of
correspondence should be guaranteed and that there should be no kind of interception of

11
correspondence, telegrams and telephones, but the main Committee has deleted it.
Therefore, it is unfair to say that the Fundamental Rights Committee did not consider this
question.

The first mention of something resembling a right to privacy is in K.T. Shah’s

Note on Fundamental Rights in December 1946. The paper discussed the history of
Fundamental Rights around the world and listed a number of essential rights – many of
which eventually found their way into our Constitution. Shah considered the right to
privacy to be an essential part of the right to liberty. He wrote:

“The most important of these relate to the liberty of the person and privacy of the
home. No interference of that right can be allowed without due process of law. This is a
guarantee against arrest, imprisonment or detention without due process of law, or search
warrants of a general character, invasion of the home and the like. Unlike the absolute
monarchy of the days gone by, these had been amongst the principal grievances of the
common people. It is now generally admitted that these are conditions essential and
indispensable for living on any decent level of existence”.

After several rounds of debates it was eventually decided that the right to privacy
be removed from the chapter dealing with fundamental rights. The final report of the
Advisory Committee that was submitted to the Constituent Assembly did not have any
mention of the provisions relating to the right to privacy. This was the form of the chapter
that was debated and eventually adopted by the constituent assembly.

Judicial activism has brought the Right to Privacy within the realm of
Fundamental Rights. Article 141 of the Constitution states that “the law declared by the
Supreme Court shall be binding on all courts within the territory of India.” Therefore, the
decisions of The Hon’ble Supreme Court of India become the Law of the Land. Hon’ble
Supreme Court of India has come to the rescue of common citizen, time and again by
construing “right to privacy” as a part of the Fundamental Right to “protection of life and
personal liberty” under Article 21 of the Constitution, which states “no person shall be
deprived of his life or personal liberty except according to procedures established by
law”. In the context of personal liberty, the Hon’ble Supreme Court has observed “those

12
who feel called upon to deprive other persons of their personal liberty in the discharge of
what they conceive to be their duty must strictly and scrupulously observe the forms and
rules of the law.”

The rights to privacy and fair information practices are part of the legal
framework of most countries and come into play when dealing with any identification
system like the biometrics technologies. Further, legal limitations may exist with these
systems depending on the jurisdiction, prohibitions on unlawful search and seizure will
undoubtedly have an impact. Obtaining a biometric record of an individual, particularly
from a secondary source such as his or her employer, in the course of an investigation,
could be seen as “search.” Many a times, individuals may feel that obtaining a biometric
involuntarily, even if directly obtained from an individual, be viewed as forced self-
incrimination. The parameters of these systems, such as whether the information is
obtained from those convicted of a particular set of crimes, those convicted of all crimes,
or those only charged with a crime, will likely determine how the system is viewed in the
context of due process protections of decency and fair play. The use of biometrics present
with a second party database as evidence has posed challenges to the right against self
incrimination and right to privacy.

A biometric template is a representation of an individual’s unique traits; issues

about privacy arise when biometric templates are stored without precautions in a central
database or directly on a device. The risk is clear: if an attacker gets hold of some
biometric templates, can then embody the real biometric template’s user, committing
identity theft.

The Right to Privacy presents itself as an illustration of the interpretative

capabilities of the higher judiciary, as well as a right emanating as a consequence of the
larger process of widening the ambit of specifically enumerated fundamental rights,
which shall be critically examined in the context of the Hon’ble Supreme Court’s ruling
in the case of Kharak Singh v. State of Punjab10.

10
Kharak Singhv.State of Punjab AIR 1963 SC 1295.

13
The Hon’ble Supreme Court has reiterated the Right to Privacy as a fundamental right in
the following cases:

Kharak Singh v. State of Punjab11

Gobind v. State of Madhya Pradesh12

State v. Charulata Joshi13

R. Rajagopal v. State of Tamil Nadu14

People’s Union for Civil Liberties (PUCL) v. Union of India15

Mr. ‘X’ v. Hospital ‘Z’16

District Registrar and Collector v. Canara Bank17

A close examination of all the above decisions, gives us an understanding on the

judicial interpretation pertaining to privacy in India. The right to privacy can be
understood in the following ways:

1. That the individual’s right to privacy exists and any unlawful invasion of privacy
would make the ‘offender’ liable for the consequences in accordance with law;

2. That there is constitutional recognition given to the right of privacy which protects
personal privacy against unlawful governmental invasion;

3. That the person’s “right to be let alone” is not an absolute right and may be lawfully
restricted for the prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others.

On the basis of a dispassionate perusal of the aforementioned judicial rulings, it is

evident that there is an implied, unenumerated, but judicially- evolved and recognized

11
Kharak Singh v. State of Punjab, 1963 SC 1295
12
Gobind v. State of Madhya Pradesh (1975) 2 SCC 148
13
State v. Charulata Joshi,(1999) 4 SCC 65
14
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
15
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301
16
Mr. ‘X’ v. Hospital ‘Z’,(1998) 8 SCC 296
17
District Registrar and Collector v. Canara Bank,(2005) 1 SCC 496

14
right to privacy under the Indian Constitution. The shift in judicial interpretation is most
notably observed following the Maneka Gandhi case, Maneka Gandhi v. Union of
India18, wherein this right is recognized, subject to legal restrictions satisfying the
requirements as laid down in the Maneka Gandhi case.

However, if the courts were to address the issue of right to privacy under Article
21 afresh, there is little doubt that it would conclude that there does exist a right to
privacy. On a harmonious interpretation of the legal principles as laid down by the
Hon’ble Supreme Court at different points of time, it is sufficient to conclude the
existence of right to privacy under Part III of the Constitution. Privacy is also a feature of
the dignity of an individual that the preamble to the Constitution assures every individual.

Thus, the right is not merely a negative mandate upon the state not to encroach
upon the private space of the individual but is also a positive affirmation on the state to
create adequate institutions that would enable one to effectively protect his/her private
life19.

In today’s digital world, the fundamental right to privacy safeguards who we are
and supports our on-going struggle to maintain our autonomy and self-determination in
the face of increasing state power. Technological advancements are providing
unprecedented opportunities to empower people, but also pose the potential for
significant negative impacts on basic human rights. These consequences are a particular
risk in the deployment of biometric technology, which remains unregulated by laws
relating to the protection of personal data and privacy as well as the biometric industry,
which fails to incorporate privacy and data protection standards in their own procedures.
Emerging challenges include the ethical impact of identification programmes, the need to
consider cultural and social norms, and the dangers of the amassment of data.

The Indian Constitution provides for protection to an accused against self-

incrimination under compulsion through Article 20(3)– ‘No person accused of an offence
shall be compelled to be a witness against himself’. This libertarian provision can be
18
Maneka Gandhi case,Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621
19
R. Unger, Knowledge and Politics (1975), as referred to in Lawrence H. Tribe, American
Constitutional Law 1305. Thus the right to privacy has a strong constitutional edifice.

15
connected to an essential feature of the Indian Penal Code based on the lines of Common
Law that, “an accused is innocent until proven guilty” and the burden is on the
prosecution to establish the guilt of the accused; and that the accused has a right to
remain silent which is subject to his much broader right, against self-incrimination. Its
first appearance has been considered a landmark event in the history of common law20. In
1978, under the 44th Amendment, the Article 20 of the Constitution of India was granted
a non-derogable status i.e. the state has no legal basis, even in a state of emergency, to
refuse to honour this right. Thus, this is a testimony to the importance it has been
accorded in our Constitution.

1.6. Biometrics and implications -Right against self incrimination

Universal Declaration of Human Rights, 1948 under Article 11 declare that

“Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.” The International Covenant on Civil and Political Rights,
1966 to which India is a party states in Art. 14(3)(g) “Not to be compelled to testify
against himself or to confess guilt”. The European Convention for the Protection of
Human Rights and Fundamental Freedoms states in Art. 6(1) that every person charged
has a right to a ‘fair’ trial and Art. 6(2) thereof states:“ Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law.”

The right against self-incrimination originated in England and Wales. In countries

deriving their laws as an extension of the history of English Common Law, a body of law
has grown around the concept of providing individuals with the means to protect
themselves from self-incrimination. As with other features of Scots criminal and civil
law, both common and statute law originated differently from that in England and Wales.
The fifth amendment of the U.S. constitution provides that: “No person shall be
compelled in any Criminal Case, to be a Witness against Himself. ”

20
John H. Langbein, The Historical Origins of the Privilege against Self-Incrimination at Common
Law, Vol. 92(5), Michigan Law Review 1047, (1994).

16
 It is a fundamental principle of the Common Law that a person accused of any
offence shall not be compelled to discover documents or objects which incriminate
himself. No witness, whether party or stranger is, except in a few cases, compellable to
answer any question or to produce any document the tendency of which is to expose the
witness (or the spouse of the witness), to any criminal charge, penalty or forfeiture. The
privilege is based on the policy of encouraging persons to come forward with evidence in
courts of justice, protecting them, as far as possible, from injury, or needless annoyance,
in consequence of doing so.

Article 20 (3) of the Indian Constitution, 1950 is based on the principle which is
espoused on the maxim “nemo teneteur prodre accussare seipsum”, which essentially
means “no man is bound to accuse himself.” Self-incrimination is the act of exposing
oneself by making a statement generally "to an accusation or charge of crime; to involve
oneself or another person in a criminal prosecution or the danger thereof." Self-
incrimination can occur either directly or indirectly: directly, by means of interrogation
where information of a self-incriminatory nature is disclosed; indirectly, when
information of a self-incriminatory nature is disclosed voluntarily without pressure from
another person. In many legal systems, accused criminals cannot be compelled to
incriminate themselves. They may choose to speak to police or other authorities, but they
cannot be punished for refusing to do so. The precise details of this right of the accused
vary between different countries, and some countries do not recognize such a right at all.

The privilege against self-incrimination is a fundamental canon of common

criminal law jurisprudence. The characteristics features of these provisions are:

1. That the accused is presumed to be innocent,

2. That it is for the prosecution to establish his guilt, and

3. That the accused need not make any statement against his will.

Therefore, the privilege against self-incrimination thus enables the maintenance of

human privacy in the enforcement of criminal justice. It is trait that ‘No man, not even
the accused himself can be compelled to answer any question, which may tend to prove

17
him guilty of a crime, he has been accused of.’ If the confession from the accused is
derived from any physical or moral compulsion (be it under hypnotic state of mind) it
should stand to be rejected by the court. The right against forced self-incrimination,
widely known as the Right to Silence is enshrined in the Code of Criminal Procedure
(CrPC) and the Indian Constitution. In the Cr.P.C., the legislature has guarded a citizen’s
right against self-incrimination. Section 161 (2) of the Code of Criminal Procedure states
that “every person is bound to answer truthfully all questions, put to him by a police
officer, other than questions the answers to which would have a tendency to expose that
person to a criminal charge, penalty or forfeiture”. This provision contains following
ingredients:

1. It is a right available to a person accused of an offence.

2. It is a protection against “compulsion to be a witness.

3. It is a protection against such “compulsion” resulting in his giving evidence

“against himself”.

In America the right against self incrimination is not only available to accused but
also to the witness, but such privileges are available only to the accused. But in Nandini
Satpathey v. P.L. Dani21 It was subsequently held that, the right extends to witness and
accused alike. There are also exceptions to the rule. An accused can be compelled to
submit to investigation by allowing his photographs taken, voice recorded, his blood
sample tested, his hair or other bodily material used for DNA testing etc.

A survey of the current law in various countries reveals that in USA, Canada and
India in view of the constitutional provisions against self incrimination the Courts have
required the prosecution to prove guilt beyond reasonable doubt and there has been no
encroachment whether at the stage of interrogation or trial, into the right to silence vested
in the suspect or accused.

It is well established fact, that the Right to Silence has been granted to the accused
by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani,(Supra) no

21
Nandini Satpathy vs P.L. Dani, (1978) 2 SCC 424

18
one can forcibly extract statements from the accused, who has the right to keep silent
during the course of interrogation/investigation. By the administration of these tests,
forcible intrusion into one's mind is being restored to, thereby nullifying the validity and
legitimacy of the Right to Silence and right to privacy.

Accounts of powerful new forensic technologies such as DNA typing, data

mining, biometric scanning, and electronic location tracking fill the daily news.
Proponents praise these techniques for helping to exonerate those wrongly accused, and
for exposing the failure of a criminal justice system that previously relied too readily
upon faulty forensic evidence like handwriting, ballistics, hair and fiber analysis.
Advocates applaud the introduction of a "new paradigm" for forensic evidence, and
proclaim that these new techniques will revolutionize how the government investigates
and tries criminal cases.

While the new forensic sciences undoubtedly offer an unprecedented degree of

certainty and reliability, these characteristics alone do not necessarily render them less
susceptible to misuse. In fact, this research will examine the admissibility of the
biometric evidence more particularly with reference to the constitutional right guaranteed
under Articles 21 and 20(3) of constitution of India.

Without discrediting the benefits of the aforementioned uses of biometric

technology, the failure to carry out thorough risk assessments has meant that threats to
privacy have failed to be identified and thus are not being prevented or at the very least
mitigated. This lacuna permits mass human rights violations, which directly deny
individuals of their autonomy, their fundamental freedoms and in extreme circumstances
their identity. In the case, for example, of migrants, the use of biometrics systems for
identification purposes means that a misidentification could hinder their fundamental
right to seek asylum, if they are identified for already having had their asylum claim
rejected. In addition, the lack of risk assessments also means the relevance and
appropriateness to use the technology is also not being addressed, such as in Kenya
where the system failed due to poor training of voting officers to handle the system and
there were no power sockets.

19
 The recent major leak of personal data experienced by the biometric electoral
registration roll in Argentina is yet an another warning that these concerns are real and
the poorly framed deployment of biometric technologies is having disastrous negative
effects on the privacy of individuals including the accused and the protection of their
personal data.

The historic reaction to biometrics on the part of most privacy advocates is to

view it as a threat to privacy. There are cultural objections raised where biometrics are
seen as a loss of dignity, stigmatizing those from whom the biometric is collected.
Religious objections may be raised. There are fears of physical invasiveness either
directly in the case of DNA collection or retinal scan. Finally there are philosophical
objections to the perceived loss of autonomy and control if the use of biometrics is so
wide spread as to become virtually required to conduct the day-to-day aspects of one’s
life. But biometrics are also being put forward as a benefit to privacy by securely
protecting one’s identity and access to one’s own information. As with all technologies,
biometric technologies themselves are privacy neutral. It is how these technologies are
used and how we set controls on their use that will answer the question — friend or foe?

Law is a living process, which changes according to the changes in society,

science, ethics and so on. The Legal System should imbibe developments and advances
that take place in science as long as they do not violate fundamental legal principles and
are for the good of the society. The criminal justice system should be based on just and
equitable principles. Legislation, policies and procedures must be developed and
conveyed to biometric users. When a biometric is to be collected, how it is used, to whom
it is disclosed and how long it is retained must be clearly understood.

Whenever a balance between individual needs and societal needs must be struck,
the development of legislation is perhaps the best way to achieve this balance. Although
most Western jurisdictions have legislated privacy and information handling practices,
there are some notable exceptions, with considerable variation in the laws. This means
that separate legislation to cover the use of biometrics is called for. Public concerns about
multi-purpose identification processes have been well documented and the unrestrained
use of biometric technologies by disparate groups – police, employers, social benefit

20
administrators, etc., would undoubtedly meet with the same concerns. The use of
biometrics needs to conform to the standards and expectations of a privacy-minded
society.

1.7. Research Questions

The research would address the following research questions:

1. Whether the use of biometrics as evidence before the courts is settled?

2. What is the practice and procedure of biometric identification under

national and international level?

3. The conceptual analysis of biometrics as evidence

4. National and International perspective on biometric identification and

Technology.

5. What are challenges to right to privacy when biometrics used as

evidence?

6. How the biometrics evidence impact on right against self-incrimination

7. How to bring the harmony between common good and the Right against
self incrimination and right to Privacy?

1.8. Objectives of the Study

The objective of the present research work entitled “Biometric Evidence: Right to
Privacy and Right against Self Incrimination-A Critical Analysis” is to understand the
concept of biometric technologies as evidence against individuals, its impact on the rights
of individuals on the privacy rights and right against self incrimination. Therefore, the
following are the specific objectives:

1. To find out the present situation of use of biometrics as evidence in India

2. To Study about the use of biometrics as evidence and protection against the self
incrimination and privacy in India.

21
3. To examine the Impact of use of biometrics as evidence in India.

4. To examine the necessity to regulate the use of biometrics as evidence.

5. To Review existing laws and suggestions to regulate use and misuse of biometrics
as evidence.

1.9. Scope

The intention of the researcher is to critically examine the use of Biometrics as

Evidence and its impact on the fundamental Right to Privacy and Right against Self-
incrimination.

The present work is on the right to privacy and also right against self-
incrimination as enshrined in Indian Constitution.

The study enters a detailed discussion on the aspect of Right to Privacy and Right
against Self-incrimination with relevant Judicial decisions with relevant positions under
other laws, e.g., torts, criminal law, Right to information act tc.

1.10. Limitations

Since it is not easy to define the concept of right to privacy as it encompasses a

set of rights of a man in society. The difficulty in defining the right to privacy arises out
of the fact that this concept is not a unitary concept but a multi-dimensional concept
amenable more for enumeration rather than definition. However, it required to be broadly
defined in order to establish the right to privacy and protection thereof.

As the use of the biometrics against the individuals has only started recent past, it
is difficult to secure reliable samples, Therefore, the researcher has relied on the primary
and secondary sources for the research.

The researcher has examined the extent of biometric evidence to the issues
relating to right to privacy and right against self incrimination as the recent use of
biometric information and its leakage from the database relating to biometrics of the
people of India and also its official use through the requisition of the investigating

22
agencies have posed serious basic questions relating to the Fundamental Rights
Guaranteed under Indian Constitution.

Indian Evidence Act, the evidenciary value of expert evidence, Electronic

evidence and admissibility of electronic evidence are discussed in the research work,
they are only discussed in a limited way only to the extent of the database out put,
electronic evidence will be produced before court of law for its inspection, the courts may
take the assistance of expert opinion for admitting them in to evidence or to decide the lis
before it.

Though there are various issues and instances relating to use of biometric
evidence, which effects the right to privacy and right against self incrimination, only the
instances with respect to the use of biometric information in the AADHAR data bank will
efffect 99% peoples basic rights guaranteed under Indian constitution, the researcher has
laid more emphasis on it.

Though there are enormous land mark judgments in connection with the use of
biometrics right to privacy and right against self incrimination, the researcher has
examined the available Judgments in a limited extent.

1.11. Hypothesis

For the purpose of systematic study, the researcher has formulated the following
hypotheses:

1. Biometric identification by way of collection of information in Aadhaar system is

believed to be entreating into the right to privacy of the citizens.

2. The use of biometrics as evidence in India may prove to be violative of the right
against self incrimination and right to privacy in certain circumstances which
would have adverse impact on the constitutionally guaranteed fundamental rights.

3. There is an apprehension among the people at large are that there is every
possibility of misuse of the biometric data leading to data theft, potential misuse
of private data.

23
4. The whole country, according to the human rights activists, is under surveillance,
scrutiny and the right to privacy is at stake.

5. The use of Biometric Evidence in certain cases bring home the guilt of the
accused, who screen or cause disappearance of evidence.

1.12. Research Methodology

The present research is more of doctrinal to be given in nature. Research is a

scientific investigation. According to Clifford Woody, ‘Research’ comprises defining
and redesigning problems, formulating hypothesis or suggested solutions, collecting,
organizing and evaluating data, making deductions and reaching conclusions and lastly
carefully testing the conclusions to determine whether they fit the formulated hypothesis.
The term research refers to the systematic method consisting of enunciating the problem,
formulating a hypothesis, collecting the facts and reaching certain conclusions either in
the form of solutions towards the concerned problem or in certain generalization for some
theoretical formulation.

Law is distinct from other social sciences because of its normative character. To
achieve the desirable goal, social and ethical values, it not only regulates human conduct
and relationship but also provides for stability and continuity of legal system. So much
so, the researcher in the case of “Biometric Evidence:Right to Privacy and Right against
Self-Incrimination-A Critical Analysis” feels that the research can be fruitfully carried
out by the traditional or doctrinaire method.

In general, ‘Doctrinal Research’ is concerned with analysis of case law, arranging,

ordering, and systematizing legal propositions and to study the legal institutions. Law is
created through legal reasoning with a rational interpretation of language of the statutes
to eliminate the ambiguities if any, and to bridge the gaps in a statute taking into
consideration, the utilitarian value based policies of a society through legal proposition.
Hence, this is mainly an analytical, descriptive and doctrinaire study conducted. Every
effort has been made to collect material from appropriate and authoritative sources of
information.

24
1.13. Source of data and data collection.

The present research work covers collection of primary, secondary and tertiary
data sources. For the purpose of analyzing the problem, required information in the
original texts of Legislations, Articles and Policy documents have been examined. In
addition, relevant books, journals, periodicals, reports and other research materials have
been collected and used as secondary source materials. Further, news items from various
news papers and news magazines have also been utilized as secondary source. The
tertiary sources in the form of websites have been browsed extensively to get in the
formation and literature on the topic of the study both at the national and international
level.

1.14. Review of Literature

On the present research topic “Biometric Evidence: Right to Privacy and Right
against Self Incrimination-A Critical Analysis” there was no much research work appears
to have been done in India. Existing literature on the relevant topic has been extensively
surveyed. Books and research papers on the aspects of biometrics and constitution of
India have been referred. Law Journals and other Periodicals and United Nations treaties
have been surveyed. Though the present work is a thesis in the disciplines of Law, it has
to be done in close coordination with other disciplines like forensic science, sociology at
places. Hence, relevant literature in the areas also is extensively surveyed. However,
sufficient literature has already been developed on the legal issues and constitutional
guarantees available to the citizens of India on Right against self-incrimination and Right
to Privacy. Use of biometric technologies in identification is of comparatively recent
development in India in an organised manner. Today, every society is having acceptance
and at the same time opposing opinion on biometric identification. The challenges
associated with the data retention, misuse, mal-use of biometric database is much concern
of any civilized society and so also Indian context. However, the following literature is
available on the subject both in written books, published articles in various countries and
India as well.

25
 Kindt, Els J. In his book entitled “Privacy and Data Protection Issues of
Biometric Applications - A Comparative Legal Analysis22” discussed all critical privacy
and data protection aspects of biometric systems from a legal perspective. The book
contains a systematic and complete analysis of the many issues raised by these systems,
worldwide examples and provides several recommendations for a transnational
regulatory framework.

Jiang, R., Al-Madeed, S., Bouridane, A., Crookes, D., Beghdadi, A. (Eds.), in their
book entitled “Biometric Security and Privacy23” highlights recent research advances on
biometrics using new methods such as deep learning, nonlinear graph embedding, fuzzy
approaches, and ensemble learning. Included are special biometric technologies related to
privacy and security issues, such as cancellable biometrics and soft biometrics. The book
also focuses on several emerging topics such as big data issues, internet of things,
medical biometrics, health care, and robot-human interactions. The authors show how
these new applications have triggered a number of new biometric approaches.

Anil K. Jain, Ruud Bolle, Sharath Pankanti24 in their book entitled Biometrics:
Personal Identification in Networked Society, Springer Science & Business Media, 2006
provide extensive information and this work is a comprehensive and accessible source of
state-of-the-art information on all existing and emerging biometrics: the science of
automatically identifying individuals based on their physiological or behaviour
characteristics. In particular, the book covers (1) General principles and ideas of
designing biometric-based systems and their underlying tradeoffs, (2) Identification of
important issues in the evaluation of biometrics-based systems, (3) Integration of
biometric cues, and the integration of biometrics with other existing technologies, (4)
Assessment of the capabilities and limitations of different biometrics, (5) The
comprehensive examination of biometric methods in commercial use and in research
development and (6) Exploration of some of the numerous privacy and security

22
Kindt, Els J., Privacy and Data Protection Issues of Biometric Applications - A Comparative Legal
Analysis, Springer, 2013.
23
Jiang, R., Al-Madeed, S., Bouridane, A., Crookes, D., Beghdadi, A. (Eds.), Biometric Security and
Privacy, Springer, 2013.
24
Anil K. Jain, Ruud Bolle, Sharath Pankanti, Biometrics: Personal Identification in Networked
Society, Springer Science & Business Media, 2006

26
implications of biometrics. The book also included the chapters on face and eye
identification, speach recognition, networking, and other timely technology-related
issues. All chapters are written by leading internationally recognized experts from
academia and industry.

Anil K. Jain, Patrick Flynn, Arun A. Ross25 in their book entitled “Handbook of
Biometrics” Springer Science & Business Media, 2007 Accordion to the authors,
Biometric recognition, or simply Biometrics, is a rapidly evolving field with applications
ranging from accessing one's computer to gaining entry into a country. Biometric systems
rely on the use of physical or behavioural traits, such as fingerprints, face, voice and hand
geometry, to establish the identity of an individual. The deployment of large-scale
biometric systems in both commercial and government applications has served to
increase the public’s awareness of this technology. This rapid growth has also highlighted
the challenges associated with designing and deploying biometric systems.

Mrinalini Shah in his article entitled “E-Governance in India: Dream or

reality?26” has that India is moving towards achieving e-governance. E-governance can
be attained in four steps: Information or Cataloguing, Transaction, Vertical Integration
and horizontal integration. India has already achieved the first and the second stage of e-
governance. And presently the country is on the verge of attaining the third stage, and
moving towards the fourth or the final stage, that is, horizontal integration, which is most
challenging. Still there are number of issues untouched. Geographical, social, &
economical disparities are the biggest barriers for full-fledged e-governance. Illiteracy,
lack of infrastructure, security and privacy of personal and financial data are other
constraints. This article discusses the position of India in e-governance environment and
issues and challenges ahead.

Anil Padmanabhan in his article Aadhaar: In the eye of the privacy storm27
argued that there is an urgent need to generate a larger conversation on privacy, which

25
Anil K. Jain, Patrick Flynn, Arun A. Ross, Handbook of Biometrics, Springer Science & Business
2007
26
Shah, M., E-governance in India: Dream or reality, International Journal of Education and
Development using ICT [Online], 3(2).
27
Live Mint, 28-2-2017

27
involves all stakeholders including the consumer and this has to be done soonest. The
author further argues that the privacy warriors have used this moment to argue their long-
standing case against Aadhaar. While no one can dispute their concerns on privacy, it is
unfair to pick on Aadhaar as the sole example of such breach of privacy; indeed it has its
shortcomings.

Suyash Sarvankar in his article “Key Disclosure Laws and the Right Against Self-
Incrimination in India28” discussed that in the contemporary era, when documents are
increasingly electronic, almost always often encrypted to varying degrees, and then
stored on a third party platform, the present legal framework with respect to right against
self incrimination is inadequate to address the complex range of situations that may arise.
Interpretations on the extent of right against self incrimination in the context of encrypted
data is far from development in India, which allows potential infringement of
fundamental rights even when the data does not lead to conviction. The author examines
the scope of Article 20 (3), and further argues why key disclosure laws like Section 69 of
Information Technology Act cannot compel an accused to decrypt encrypted data, that
may or may not lead to incrimination if basic notions of liberty, privacy and rule of law
were read in.

Arvind Pillai, Raghav Kohli29 in article “A Case for a Customary Right to

Privacy of an Individual: A Comparative Study on Indian and other State Practice”
traces the evolution of the right to privacy in India, starting with an exploration of its
conception in the Constituent Assembly Debates of the longest Constitution in the world.
It attempts to ascertain the intent behind the exclusion of the right to privacy as a
fundamental right from the Constitution, and analyses the contemporary position
developed by the inconsistent jurisprudence of the Courts in India. Finally, by
scrutinizing the practices of states from around the world, it argues that the right to
privacy, and in particular data privacy, can be considered a binding principle of
customary international law.

28
Sarvankar, Suyash, Key Disclosure Laws and the Right Against Self-Incrimination in India (August
9, 2017), https://ssrn.com/abstract=3063854 or http://dx.doi.org/10.2139/ssrn.3063854, retrieved on
31-12-2017.
29
(2017) Oxford U Comparative L Forum 3

28
 Sunil Abraham in his article entitled “Is Aadhaar a breach of privacy?30” has
discussed that the Aadhaar has became mass surveillance technology. Unlike, targeted
surveillance which is a good thing, and essential for national security and public order,
mass surveillance undermines security. And while biometrics is appropriate for targeted
surveillance by the state. It is wholly inappropriate for everyday transactions between the
state and law abiding citizens.

Ranabir Samaddar in his article "Beyond the Frame of Practical Reason: The
Indian Evidence Act and Its Performative Life31” discussed on legal framework and
practical reasons with referenced to the Indian Evidence Act on application of biometrics.

Prashant Iyengar in his book entitled “Privacy in India - Country Report32.”

According to the researcher, although not specifically referenced in the Constitution of
India, the Right to Privacy is considered a ‘penumbral right’ under the Constitution i.e. a
right that has been declared by the Supreme Court as integral to the Fundamental Right to
Life and Liberty and Freedom of Expression. In addition, although no single statute
confers a cross-cutting ‘horizontal’ right to privacy to Indian citizens, various statutes and
regulatory instruments contain provisions which either implicitly or explicitly preserve
this right. This paper attempts to provide a detailed tracking of the fate of privacy in India
drawn both from constitutional and statutory regimes, as well as newspaper accounts.

Shivani Mittal has extensively discussed on The right against self-incrimination

and State of Bombay vs. Kathi Kalu Oghad: A critique33, wherein the paper discusses the
important stages of the evolution of case law on the right against self-incrimination as
enshrined in Article 20(3) of the Indian constitution and also the weaknesses of case law
are highlighted as initially established in M.P. Sharma v. Satish Chandra34 in terms of its
interpretation of self-incriminating evidence.

30
Sunil Abraham, Is Aadhaar a breach of privacy?, The Hindu, 31-3-2017
31
Sage publications, Volume: 60 issue: 3-4, page(s): 58-73, July 7, 2015
32
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302978, rerived on 31-7-2017
33
Shivani Mittal, The right against self-incrimination and state of Bombay v. Kathi Kalu Oghad: A
critique, 2(1) NLUJ Law Review 75 (2013)
34
M. P. Sharma And Others vs. Satish Chandra, District, 1954 AIR 300, 1954 SCR 1077

29
 Kumar, S.K., in his article” Narco-Analysis - Right to Self-incrimination v/s.
Public Interes35” has discussed the implications of Narco-analysis as operates against
self incrimination and also opposes to public interest as well.

Kaustav Ghosh on Right to Privacy36 has discussed on the right to privacy as

enumerated under Indian Constitution. The author further argues that When tapping of
telephonic conversation and reproductive choice can be considered as right to privacy
then how giving our biometric details cannot be considered as infringement of right to
privacy. The privacy based arguments have been used to support the conservative claims
that neither the government nor the fellow citizens can interfere with the traditional
practices merely for the sake of progressive ideas about marriage, family, social life, or
citizenship.

Salil Prabhakar, Sharath Pankanti and Anil K. Jain37 have paper on “Biometric
Recognition: Security and Privacy Concerns”. According to the authors, reliable personal
recognition is critical to many business processes. Because conventional knowledge and
token-based methods rely on surrogate representations of a person’s identity to establish
personal recognition, any system assuring reliable positive personal recognition must
necessarily involve a biometric component. The authors opine that the use of biometrics
indeed raises several privacy concerns.

Debnath Bhattacharyya, Rahul Ranjan, Farkhod Alisherov A., and Minkyu Choi38
have published their paper on “Biometric Authentication: A Review”. According to them,
biometric authentication can offer a high degree of security; they are far from perfect
solution. Sound principles of system engineering are still required to ensure a high level
of security rather than the assurance of security coming simply from the inclusion of
biometrics in some form. The risks of compromise of distributed database of biometrics
used in security application are high - particularly where the privacy of individuals and
35
Kumar, S.K., in his article” Narco Analysis - Right to Self-incrimination v/s. Public Interest,
Criminal Law Journal, 2007
36
Kaustav Ghosh on Right to Privacy, Scholors Paradise, Volume 1, September 2017
37
S. Prabhakar, S. P., Biometric Recognition: Security and Privacy Concerns, IEEE Security and
Privacy, 33-42.
38
Debnath Bhattacharyya, R. R., September). Biometric Authentication: A Review. International
Journal of u- and e- Service, Science and Technology, 2(3)

30
hence non-repudiation and irrevocability are concerned. It is possible to remove the need
for such distributed databases through the careful application of biometric infrastructure
without compromising security.

Center for Science and Environment (CSE) team39 has published its article on
“Bank at your Doorstep”. Team has discussed about application of Biometric Security
System in banking sector.

K. Balchand40 has published his article on “Thanks to Aadhaar, MGNREGS is in

demand in Jharkhand”. According to him, Prompt payment through bank; corruption
eliminated; in fact, some workers have a saving. The author observed that as the new
system ensures payment of wages within a week, the demand for work under MGNREGS
has gone up. Consequently, migration has been checked, families have been reunited and,
no less important, some workers have a saving in the bank.

Raghvendra Rao41 has published his article on “Home Ministry plans biometric
system for access to its computers”. According to him a year after Home Ministry
installed biometrics-based Attendance and Access Control Systems for its offices in
North Block, Lok Nayak Bhawan and Jaisalmer House in New Delhi, the Ministry of
Home Affairs (MHA) has decided to install Biometrics Access Control Devices for the
computer systems in the buildings.

Vijay Dhir, Amarpreet Singh, Rakesh Kumar and Gurpreet Singh have published
their paper on “Biometric Recognition: A Modern era for Security” discussed that any
system assuring reliable personal recognition must necessarily involve a biometric
component. They also argued that the Biometric-based systems also have some
limitations that may have adverse implications for the security of a system.

39
Center for Science and Environment (CSE) team. (2010)., Bank at your Doorstep.
40
Balchand, K., Thanks to Aadhaar, MGNREGS is in demand in Jharkhand. The Hindu. Retrieved
September 8, 2012
41
Raghavendra Rao, Home Ministry plans biometric system for access to its computers. Indian
Express. Retrieved 31-7-2017

31
 D. Ashok Kumar and T. Ummal Sariba Begum42 in their paper on “A Novel design
of Electronic Voting System Using Fingerprint” have conducted the Pilot Election using
a Personal Computer with four fingerprint scanners for selecting class representative. The
database is created based on the digital personal scanner. This primary process is done
during the registration process. After that, the chosen finger can be live scan. The
fingerprint template is then processed and extracted. It will subsequently match the
scanned fingerprint against the stored template. Upon verification, they will have the
access to vote for their desired candidates. Mismatched fingerprint certainly would
indicate denial from the access.

A. Selvaraj43 in his article on “Jails now record biometric data of inmates and
visitors” discussed that prison officials have started collecting and storing the fingerprints
and photographs of inmates as well as visitors to Puzhal and Tiruchi prisons. The system
of storing biometric data was started when officials realized that a number of criminal
conspiracies are being hatched within the prison premises. The system has been
introduced in both Prison - I (convicted prisoners) and Prison - II (remand prisoners) of
Puzhal and in Tiruchi prisons. They have collected and stored personal profiles of nearly
1,500 prisoners. This will help the police to keep track of every criminal.

Nadarajah Manivannan, C. Tigli, Azad Noor and S. Memon44 in their paper on

“Fingerprint Biometric for Identity management” have explained basic stages of
automatic fingerprint systems and a comparison study among three commercially
available automatic fingerprint recognition systems. This study suggests that automatic
fingerprint recognition systems performs reliably well as far as recognition is concerned,
however there is a number of areas, such as liveness detection and unsupervised
recognition, need to be tackled for high security applications, such as border control and
anti-terror activities.

42
Sariba, D. A., A Novel design of Electronic Voting System Using Fingerprint., International Journal
of Innovative Technology and Creative Engineering, 1(1), 12- 19.
43
Selvaraj, A., Jails now record biometric data of inmates and visitors, Times of India. Retrieved 31-
12-2017
44
Nadarajah Manivannan, C. T., Fingerprint Biometric for Identity management. International Journal
of Industrial Engineering and Management (IJIEM), 2(2), 39-44.

32
1.15. Scheme of the Presentation:

The present research work is divided into seven chapters with the following
Chapter heads:

Chapter – I, ‘Introduction: In the first chapter of the present research work, the
researcher has introduced the area of research wherein, in addition to brief introduction of
the chosen research problem, the researcher has also provided literature review in the
area, the research methodology followed, the formulated hypotheses etc.

Chapter – II, Biometrics – origin and development. In this chapter, the researcher
has extensively discussed the historical background, origin and development of
biometrics in the world.

Chapter – III, Use of biometrics as evidence. In this chapter, the researcher has
elaborately discussed the use of biometrics as evidence and more particularly
identification as evidence under Indian legal regime. The discussion includes application
of biometric technology and its implications.

Chapter – IV The fourth chapter of the present work is on comparative law

relating to right right to privacy of citizens. In this chapter, the researcher has discussed
extensively the legal provisions relating right to privacy in various countries in the Globe
and also the development in Indian scenario.

Chapter – V, In the fifth chapter, the researcher has extensively discussed

comparative law relating to Right against Self-incrimination in various countries and
also in India, the researcher has discussed the case law relating to self incrimination. The
discussion on right against self-incrimination has been discussed from point of view of
both constitutional and other enacted statutes as well.

Chapter – VI, The sixth chapter is devoted for the main research work undertaken
by the researcher. The chapter entitled “Biometric Evidence: Right to Privacy, Right
against Self-Incrimination - A Critical Analysis.” In this the researcher has discussed in
detail the Biometric Evidence: Right against self-Incrimination and privacy in a critical
analytical method.

33
 Chapter – VII The seventh chapter is concluding chapter. In this chapter, the
researcher has concluded entire research work and also came up with certain workable
recommendations/suggestions for effective working of biometric evidence vis-à-vis right
against self-incrimination and right to privacy in India.

34
 CHAPTER – II

BIOMETRICS – ORIGIN AND DEVELOPMENT

In this chapter, the researcher extensively discussed about the historical

background, origin and development of biometrics in the world.

2.1. Introduction

The use of biometric technology, which totalises body characteristics to identify a

person, goes back to the ancient civilizations of Egypt and China. Early uses of
biometrics include the practice in ancient China, whereby babies were distinguished from
each other through ink stamps of palm and footprints. The ancient form of Biometrics
appeared on the scene back in the 1800's. Alphonse Bertillon, a Perisian anthropologist
and police desk clerk, developed a method for identifying criminals that became known
as Bertillonage, which identification technique was a form of anthropometry, a system by
which measurements of the body are taken for classification and comparison purposes.
This Bertillon system earlier used for identifying persons by means of a detailed record of
body measurements, physical description, and photographs. The Bertillon system was
superseded by the more accurate procedure of fingerprinting and subsequently many
more identification techniques were emerged.

In the early nineteenth century, criminology was the main driving force of
biometrics. Presently the biometric techniques are used mainly in security operations and
identification of people as beneficiaries under various state sponsored schemes etc.

According to the International Biometric Society the terms "Biometrics" and

"Biometry" have been used since early in the 20th century to refer to the field of
development of statistical and mathematical methods applicable to data analysis problems
in the biological sciences. Its main task has been the analysis of data from agricultural
field experiments, human clinical trials evaluating the relative effectiveness of competing
therapies for disease, or for the analysis of data from environmental studies on the effects
of air or water pollution on the appearance of human disease in a region or country.

35
 According to the International Biometric Society (IBS), it is only in the recent
years that the term “Biometrics” is used to refer to the emerging field of technology
devoted to identification of individuals using biological traits, such as those based on
retinal or iris scanning, fingerprints and face recognition. The most popular techniques
that are being applied in the contemporary times in many countries of the world based on
physical characteristics as fingerprint ridge pattern, hand geometry, retinal recognition,
facial recognition, and also behavioural characteristics such as voice verification and
signature stoke pattern. There are also less used techniques of authentication such as vain
checking of patterns in hand and wrist, gait recognition, iris scanning, earlobe analysis,
sweat pores, chemical composition of body odour and brain waves1. This means that this
field has a realistic potential of developing even further, when additional techniques will
surface in time.

The term "biometrics" is derived from the Greek words bio (life) and metric (to
measure). There are two types of biometrics (1) Physiological and (2) Behavioural
biometrics which are used to verify the identity or claimed identity of an individual.

In fact, there is evidence of hand-“signed” cave paintings dating back 31,000

years. The practical landmarks in biometric identification are known in the recent history
and a few are:

1892 Galton develops fingerprint classification system2

1959 LAPD catalogues “tattoos and identifying marks3”

1994 First iris recognition algorithm patented4

1
Sanchez, Orestez, BioSec: a European Project, Biometric Technology Today Vol. 13, Issue 6, June,
p. 9. 2005.
2
Galton's ancestral law states that the two parent contribute between them on average one-half of the
total heritage of the offspring, the four grandparents one-quarter, and so on. He interpreted this law
both as a representation of the separate contributions of each ancestor to the heritage of the offspring
and as a multiple regression formula for predicting the value of a trait from ancestral values. Logical
reconstruction of the law is presented based on formalizing Galton's model of heredity outlined in
Natural Inheritance.
3
Keenan, T.P., Technnocreep, The Surrender of Privacy and The Capitalization of Intimacy,
Greystone Books, Vancouver BC, OR Books, New York, 2014. The League of the LAPD did
investigate the possibility of only officers with "offensive" Tattoos cover them

36
1994 Automated immigration service using hand geometry (INSPASS) introduced

1994-99 FBI develops and launches IAFIS (fingerprints)

2009 India establishes Unique Identification Authority of India

Before the advent of biometric systems as one see in the contemporary society,
human characteristics were compared in a manual way. Biometric systems hence differ
from any manual verification method in that the technology allows for the automated
comparison of the human characteristic(s). The systems themselves however do not
identify individuals. For identification, additional information such as information in
databases is needed. Biometric systems only compare information submitted. Biometric
systems and applications hereby use for such automated process mathematical and
statistical methods for the qualitative and quantitative measurement of relevant features
which are extractable from human characteristics.

Historical trace indicate the origins of the concept of Biometrics during 14 th

century in China. The explorer Joao de Barros5 recorded that “Chinese merchants were
stamping children's palm prints and footprints on paper with ink to distinguish the young
children from one another”6. The idea that parts of our body can be used to identify our
unique selves is not new. Prints of hand, foot and finger have already been used in
ancient times because of their unique characteristics. A canvas in Metropolitan Museum
in France reveals discovery by the group of Chauvet, paintings believed to be created by
prehistoric men and estimated to be around 32,000 years or even 36,000 years old,
contained hand prints. Some of these prints are believed to have been fixed by the
originators of the images, to identify themselves7.

4
Although John Daugman developed and patented the first actual algorithms to perform iris
recognition, In a 1953 clinical textbook, F.H. Adler wrote: "In fact, the markings of the iris are so
distinctive that it has been proposed to use photographs as a means of identification, instead of
fingerprints."
5
João de Barros, the Portuguese Livy, is one of the first great Portuguese historians, most famous for
his Decades of Asia a history of the Portuguese in India, Asia, and southeast Africa.
6
Patrick S. P. Wang, Pattern Recognition, Machine Intelligence and Biometrics, Springer Science &
Business Media Higher Education Press, Beijing, 2012, p. 658
7
J. Clottes, Chavet Cave The Metropolitan Museum of France, http://www.metmuseum.org/ toah/
hd/chav hd_chav.htm, Retrieved on 31-12-2017

37
The ancient Babylonian King Hammurabi is known to have enacted one of the first
written codes of law in the world in clay tablets, the Hammurabi Code. The kings of
Babylon were supposedly using an imprint of their right hands in the clay tablets in order
to authenticate the tablets8. In Babylonia, fingerprints were also used in business
transactions that were recorded on clay tablets9.

In the history, one can trace that Chinese use fingerprints and handprints as marks
of authenticity for at least 2,000 years. In ancient China, fingerprints were routinely
pressed in clay tablets and clay seals. Documents from the Tang dynasty in China10
referred to the use of fingerprints and handprints on contracts11. Others report that
Chinese merchants used in the fourteenth century palm and footprints to distinguish
children from one another12.

During the 19 th century in Europe, Alphonse Bertillon was trying to find a way to
identify convicted criminals. Bertillon, an anthropologist and police desk clerk in Paris,
developed a system called “Bertillonage” that used physical characteristics i.e., body
lengths as a means of identifying criminals. This system was flawed in that more than one
person could share the traits Bertillon used. Alphonse Bertillon, a French criminologist
who first developed this anthropometric system of physical measurements of body parts,
especially components of the head and face, to produce a detailed description of an
individual. This system, invented in 1879, became known as the Bertillon system, or
bertillonage, and quickly gained wide acceptance as a reliable, scientific method of

8
J. Ashbourn, The Social Implications of the Wide Scale Implementation of Biometric and Related
Technologies, Background paper for the Institute of Prospective Technological Studies , DG JRC –
Seville, European Commission, January 2005, p. 4,
9
Biometrics Task Force, Biometrics History Timeline, slide 1, Department of Defense (U.S.A.),
available at http://www.biometrics.dod.mil/References/Biometrics_Timeline.aspx. Retrieved on 31-
12-2016.
10
TheTang Dynasty(618-907 CE) is regularly cited as the greatest imperial dynasty in ancient Chinese
history. It was a golden age of reform and cultural advancement, which lay the groundwork for
policies which are still observed in China today. The second emperor, Taizong (598-649 CE, r. 626-
649 CE) is held up as an exemplary ruler who reformed the government, social structure, military,
education, and religious practices.
11
A. Farelo, A History of Fingerprints , Interpol, April 2009, p. 2.
12
Z. McMahon, Biometrics : History , Indiana University, Indiana University Computer Science
Department cited in National Science and Technology Council (NSTC), Committee on Technology,
Committee on Homeland and National Security, Subcommittee on Biometrics, Biometrics History , 7
August 2006

38
criminal investigation. In 1884 alone, French police used Bertillon’s system to help
capture 241 as many as repeat offenders, which helped to establish the system’s
effectiveness.

In France primarily investigators used the Bertillon system to determine if a

suspect in custody had been involved in previous crimes. Basing on this, the Law
enforcement agencies began to create archives of records of known criminals, which
contained his or her anthropometric measurements, as well as full-face and profile
photographs of the perpetrator. However, the shortcomings of Bertillonage prompted
Richard Edward Henry13 of Scotland Yard to seek a more reliable method to identify
criminals. Henry decided that fingerprinting was the most accurate way to do this, and
police began to adopt this as the primary method of criminal identification in the early
20 th century.

It is to be noted that although fingerprint characteristics were studied as far back

as the mid-16 th century, the use of fingerprints as a means of identification did not occur
until the mid-19th century. Roughly in 1859, Sir William James Herschel discovered that
fingerprints remain stable over time and are unique across individuals, as Chief
Magistrate of the Hooghly district in Jungipoor, India, in 1877, he was the first to
institute the use of fingerprints and handprints as a means of identification, signing legal
documents, and authenticating transactions. The fingerprint records collected at this time
were used for one-to-one verification only; as a means in which records would be
logically filed and searched had not yet been invented. In the British Indies colonies, Sir
William Herschel, working as a British officer for the Indian Civil Service, started in the
1850’s putting signatures of the hand and fingerprints on contracts. The prints were used
in order to avoid that workers were paid twice or that one would impersonate someone
else upon pay day. He is often credited with being the first European to recognize the
importance of fingerprint for identification14.

13
Sir Edward Richard Henry was the Commissioner of Police of the Metropolis. His commission saw
the introduction of police dogs to the force however, he is best remembered today for his
championship of the method of fingerprinting to identify criminals.
14
B. Laufer, ‘History of the finger-print system’, 1912 Smithsonian Institution Annual report ,1912,
reprinted in The Print , vol. 16 (2), 2000, pp. 1–13

39
 Till recently, fingerprinting was the principal method of using biometrics. With
huge scientific and technological innovations, developments and related applications,
new forms of Biometrics have now emerged to upgrade and improve security and
identification methods. With the widespread use of computers in the late 20 th century,
new possibilities for digital biometrics emerged.

2.2. Early History and Timeline of Biometrics History15

During the mid-1800’s, there was a growing necessity for merchants and authorities to
be able to identify people. Cities were expanding, and they were faced with an
increasingly larger and more mobile population. They could no longer rely on their
experiences and local knowledge to identify people.

1858 – First systematic capture of hand images for identification purposes is

recorded - Sir William Herschel, working for the Civil Service of India, recorded a hand
print on the back of a contract for each worker to distinguish employees from others who
might claim to be employees when payday arrived. This was the first recorded systematic
capture of hand and finger images that were uniformly taken for identification purposes.

1870 – Bertillon develops anthropometries to identify individuals - Alphonse

Bertillon developed “Bertillonage” or anthropometries16, a method of identifying
individuals based on detailed records of their body measurements, physical descriptions
and photographs. Repeat criminal offenders often provided different aliases when
arrested. Bertillon noted that although they could change their names, they could not
change certain elements of their bodies. Police authorities throughout the world used this
system, until its use quickly faded when it was discovered that some people shared the
same measurements.

1892 – Galton develops a classification system for fingerprints - Sir Francis Galton
wrote a detailed study of fingerprints in which he presented a new classification system
15
Stan Z. Li, Anil K. Jain, Encyclopedia of Biometrics:I - Z., Volume 1, Springer Science & Business
Media, 2009.
16
Anthropometry "human", and "measure" refers to the measurement of the human individual. An
early tool of physical anthropology, it has been used for identification, for the purposes of
understanding human physical variation, in paleoanthropology and in various attempts to correlate
physical with racial and psychological traits.

40
using prints from all ten fingers. The characteristics (minutiae) that Galton used to
identify individuals are still used today. These details are often referred to as Galton’s
details.

1894 – The Tragedy of Pudd’nhead Wilson17 is published - In The Tragedy of

Pudd’nhead Wilson, author Mark Twain mentions the use of fingerprints for
identification. In the story, a man on trial calls on the comparison of his fingerprints to
those left at the crime scene to prove his innocence.

1896 – Henry developed a fingerprint classification system - Sir Edward Henry,

Inspector General of the Bengal Police, was in search of a method of identification to
implement concurrently or to replace anthropometries. Henry consulted Sir Francis
Galton regarding fingerprinting as a method of identifying criminals. Once the
fingerprinting system was implemented, one of Henry’s workers, Azizul Haque,
developed a method of classifying and storing the information so that searching could be
performed easily and efficiently. Sir Henry later established the first British fingerprint
files in London. The Henry Classification System, as it came to be known, was the
precursor to the classification system used for many years by the Federal Bureau of
Investigation (FBI) and other criminal justice organizations that perform ten print
fingerprint searches.

1903 – New York State Prisons begin using fingerprints - The New York Civil Service
Commission established the practice of fingerprinting applicants to prevent them from
having better qualified persons take their tests for them and this practice was adopted by
the New York state prison system where fingerprints were used “for the identification of
criminals in 1903. The growing need and demand by police officials for a national
repository and clearinghouse for fingerprint records led to an Act of Congress on July 1 st,
1921, establishing the Identification Division of the FBI.”

17
Pudd'nhead Wilsonis a novel by American writer Mark Twain. Its central intrigue revolves around
two boys—one, born into slavery, with 1/32 black ancestry; the other, white, born to be the master of
the house. The two boys, who look similar, are switched at infancy. Each grows into the other's
social role.

41
1903 – Bertillon System collapses - Two men, determined later to be identical twins,
were sentenced to the US Penitentiary18 at Leavenworth, Kansas and were found to have
nearly the same measurements using the Bertillon system.

1936 – Concept of using the iris pattern for identification is proposed -

Ophthalmologist Frank Burch proposed the concept of using iris patterns as a method to
recognize an individual.

1960s – Face recognition becomes semi-automated - The first semi-automatic face

recognition system was developed by Woodrow W. Bledsoe under contract to the US
Government. This system required the administrator to locate features such as eyes, ears,
nose and mouth on the photographs. This system relied solely on the ability to extract
useable feature points. It calculated distances and ratios to a common reference point that
was compared to the reference data.

1960 – First model of acoustic speech production is created – The first model of
acoustic speech production is created. A Swedish Professor, Gunnar Fant, published a
model describing the physiological components of acoustic speech production. His
findings were based on the analysis of x-rays of individuals making specified phonic
sounds. These findings were used to better understand the biological components of
speech, a concept crucial to speaker recognition.

1965 -Automated signature recognition research begins - North American Aviation

developed the first signature recognition system in 1965.

1969 – FBI pushes to make fingerprint recognition an automated process -In 1969,
the Federal Bureau of Investigation (FBI) began its push to develop a system to automate
its fingerprint identification process, which was quickly becoming overwhelming and
required many man-hours. The FBI contracted the National Institute of Standards and
Technology (NIST) to study the process of automating fingerprint identification. NIST
identified two key challenges: (1) scanning fingerprint cards and identifying minutiae and
(2) comparing and matching lists of minutiae.

18
The United States Penitentiary, is a medium-security United States federal prison.

42
1970s – Face Recognition takes another step towards automation - Goldstein,
Harmon, and Lesk19 used 21 specific subjective markers such as hair color and lip
thickness to automate face recognition. The problem with both of these early solutions
was that the measurements and locations were manually computed.

1970 – Behavioral components of speech are first modeled - The original model of
acoustic speech production, developed in 1960, was expanded upon by Dr. Joseph
Perkell20, who used motion x-rays and included the tongue and jaw. The model provided
a more detailed understanding of the complex behavioral and biological components of
speech.

1974- First commercial hand geometry systems become available - The first
commercial hand geometry recognition systems became available in the early 1970s,
arguably the first commercially available biometric device after the early deployments of
fingerprinting in the late 1960s. These systems were implemented for three main
purposes of physical access control; time and attendance; and personal identification.

1975 – FBI funds development of sensors and minutiae extracting technology - The
Federal Bureau of Investigation (FBI) funded the development of scanners and minutiae
extracting technology, which led to the development of a prototype reader.

1976 – First prototype system for speaker recognition is developed - Texas

Instruments developed a prototype speaker recognition system that was tested by the US
Air Force and The MITRE Corporation.

1977 – Patent is awarded for acquisition of dynamic signature information -

Veripen, Inc. was awarded a patent for a “Personal identification apparatus” that was able
to acquire dynamic pressure information. This device allowed the digital capture of the
dynamic characteristics of an individual’s signature characteristics. The development of
this technology led to the testing of automatic handwriting verification performed by The
MITRE Corporation for the Electronic Systems Division of the United States Air Force.

19
Fernando L. Podio and Jeffrey S. Dunn, Biometric Authentication Technology
20
Charles A. Shoniregun, Stephen Crosier, Securing Biometrics Applications, Springer, 2008

43
1985 – Concept that no two irides are alike is proposed - Drs. Leonard Flom and Aran
Safir21, ophthalmologists, proposed the concept that no two irides are alike.

1985 – Patent for hand identification is awarded - The commercialization of hand

geometry dates to the early 1970’s with one of the first deployments at the University of
Georgia in 1974. The US Army began testing hand geometry for use in banking in about
1984. These deployments predate the concept of using the geometry of a hand for
identification as patented by David Sidlauskas.

1986 – Exchange of fingerprint minutiae data standard is published The National

Bureau of Standards (NBS) – now the National Institutes of Standards and Technology
(NIST) – published, in collaboration with ANSI, a standard for the exchange of
fingerprint minutiae data (ANSI/ NBS-I CST 1-1986). This was the first version of the
current fingerprint interchange standards used by law enforcement agencies around the
world today.

1986 – Patent is awarded stating that the iris can be used for identification Drs.
Leonard Flom and Aran Safir were awarded a patent for their concept that the iris could
be used for identification. Dr. Flom approached Dr. John Daugman to develop an
algorithm to automate identification of the human iris.

1994- First iris recognition algorithm is patented - Dr. John Daugman was awarded a
patent for his iris recognition algorithms. Owned by Iridian Technologies, the successor
to lriScan, Inc. – this patent is the cornerstone of most commercial iris recognition
products to date.

1996 – Hand geometry is implemented at the Olympic Games - A major public use of
hand geometry occurred at the 1996 Atlanta Olympic Games where hand geometry
systems were implemented to control and protect physical access to the Olympic Village.
This was a significant accomplishment because the systems handled the enrollment of
over 65,000 people. Over 1 million transactions were processed in a period of 28 days.

21
Drs. Leonard Flom and Aran Safir, ophthalmologists, proposed the concept that no two irides are
alike, and were awarded a patent for the iris identification concept in 1987

44
1997 – First commercial, generic biometric interoperability standard is published -
Sponsored by NSA, the Human Authentication API (HA-API) was published as the first
commercial, generic biometric interoperability standard and focused on easing integration
of and allowing for interchangeability and vendor independence. It was a breakthrough in
biometric vendors working together to advance the industry through standardization and
was the precursor to subsequent biometric standardization activities.

In order to understand the legal and other issues with regard to biometric systems,
it is required to understand the more technical and functional aspects of a biometric
system. Biometric characteristics eligible for use in biometric system for automated
comparison shall have specific qualities. The mandatory qualities of the characteristics to
be used are that the human characteristic shall be universal, persistent and unique or at
least distinctive. Some of these characteristics are epigenetic and therefore also unique
for identical twins. The characteristic feature ‘universal’ means that the biometric
characteristic shall in principle be present with all human beings. The requirement
excludes the use of specific traits, such as for example spots, scars or stains on the skin,
which may be used to recognize or to identify persons, for example in a disaster scenario,
but which are not universal.

The biometric characteristic also needs to be persistent, i.e. does not change over
time in general of course there are certain limitation to it in case of ear recognition, finger
prints etc. Examples of biometric characteristics which meet according to experts, this
criterion in a convincing way include fingerprint and iris22. It is also further assumed that
the data subject is in principle not able to change its characteristics. The third criterion for
a biometric characteristic to be fit for use in a biometric application is the uniqueness or
at least the distinctiveness of the characteristic. Only biometric features which are unique
or sufficiently distinctive are fit for recognition purposes23. Fingerprint is generally
accepted to be unique. This is also the case for the fingerprint of identical twins which are
considered to be sufficiently unique to distinguish one person from the other from the
twin couple. The iris, generally considered being a phenotypic and hence an epigenetic

22
However, a fingerprint or iris pattern, however, may also be affected over time by illness or damage.
23
The recognition purposes, which include both the identification as the verification functionality, are
an important aspect of a biometric system

45
trait, is also unique for identical twins. Even the dynamic characteristics of a handwritten
signature are considered unique. If a biometric characteristic is not unique, it may be
sufficient that the characteristic is distinctive allowing to separate two individuals. Hand
geometry is an example of a characteristic that is used for the distinctiveness rather than
the uniqueness of the features. Distinctiveness is also mainly looked for when biometric
methods are used for analyzing behavioural characteristics.

In computer security, biometrics refers to authentication techniques that rely on

measurable physical characteristics that can be automatically checked. Biometric
authentication is an emerging technology that utilizes biometric data for the purpose of
person identification or recognition in security applications. A number of biometrics can
be used in a person authentication system.

Before going to further discussion on various types of biometric identification

schemes are available today, a brief discussion on advantages and disadvantages of
biometrics will be of much use for the present work.

2.3. Pros and Cons of Biometrics

One of the main advantages of biometrics is its longevity in linking an identity to

a particular body. The biometric, i.e. the characteristic or behavioural trait, cannot be
separated, borrowed, revoked, lost or stolen from its owner in the same way as can be
done with I.D. cards or keys. Many types of authentication prove only that the person
posses the token or knowledge that is requires. The biometrics, on the other hand, proves
that an identity matches a person; it is the unique within the universal, a permanent
imprint of an individual. Biometric identification is also an aspect of simplicity that is
appealing, where one’s own accounts are opened by anyone placing his/her hand on a
scanning scene or using his/her voice. There is no need to remember a password or a
code, automatically resulting in a reduction of errors and frauds. It means that the system
provides simplicity, security and efficacy.

In transactions and operations, where authentication is protected with password

systems there is no such thing as acceptance of false password or variations in the PIN,
but only the right or wrong number. In biometric systems, the data picked up from

46
biometric samples will vary. Since the identifications occur on different occasions, the
systems must be more flexible and allow for variation. It is therefore that the biometric
devices are designed to take different variables into account. This system cannot say with
hundred percent accuracy that this is a right person, only could, if it is a match or not24.

However, the biometrics suffers from inherent biometric-specific threats, mainly

due to its demand for flexibility. The threats are related to the use of digital signals and
attack on the client or the server25. The first one refers to the error rate of the pattern
recognition system, whose performance is tied to the quality of the signal input and
enrolled biometric signals and the basic characteristics of the algorithms i.e. the steps the
engine takes when calculating and testing for match26.

The other threat refers to the possibility of resubmission of a recorded signal that
is replayed to the system. It is categorized in client attack and server attack. The client
attack is when a biometric replay of an individual is used to assume someone else’s
identity. The server attack is considered to be more serious, a threat of an imposer that
poses like a real user of the server, as it aims at the server. This calls for an impostor to
obtain either valid biometric sample or template. In theory one can bypass the system by
using, for example, a copy of a valid fingerprint image or a recorded audio signal from a
speaker. Fraud is therefore not eliminated as a possibility.

Computers that collect and evaluate the biometric information are vulnerable to
the same type of fraud and manipulation as other computers. The information can be
accessed and erased, altered or copied27. Now it is pertinent to look in to what are the
different categories and types of biometrics. These measurements can be divided into two
categories: (1) Physiological and (2) behavioural.

24
Bolle, Ruud M. 2002, p. 2731
25
ibid
26
ibid
27
Feldman, Robin. 2003, p. 664

47
2.4. Types of Biometrics

2.4.1. DNA matching –

DNA is an abbreviation of Deoxyribo nucleic acid. It’s an organic substance

which is found in every living cell and gives an individual a personal genetic blue print.
The sources of DNA may be extracted from blood, saliva, semen, hair, bones and other
organs of the body. DNA technique now enjoys a legitimacy all over the world. The
technique helps the identification of criminals on scientific lines. DNA is essentially
made up of amino acids and it’s matched with so called bases which provide the key to
determine the genetic blueprint.

DNA matching is the chemical Biometric. The identification of an individual

using the analysis of segments from DNA28. Human has 23 pairs of chromosomes
containing their DNA (Deoxyribonucleic acid) blueprint. One member of each
chromosomal pair comes from their mother, and the other comes from their father,
ofcourse in some exceptional cases, there would be multiple chromosomes from parents
who were considered to be super personalities like (XYY syndrome and Triple X
syndrome, which is genetic condition in which a male has an extra Y chromosome, Triple
X syndrome, also called trisomy X or 47,XXX, is characterized by the presence of an
additional X chromosome in each of a female's cells etc....). Genes make up 5 percent of
the human genome. The other 95 percent are non-coding sequences. In non-coding
regions there are identical repeat sequences of DNA, which can be repeated anywhere
from one to 30 times in row. These regions are called variable number tandem repeats
(VNTRs). The chance of 2 individuals sharing the same DNA profile is less than one in a
hundred billion with 26 different bands studied.

2.4.2. Advantages of DNA as a biometric

Scientifically, the following are advantages of DNA as a biometric:

1. DNA is the only biometric that provides the possibility of linking relatives to an
unknown person

28
Deoxyribonucleic acid and its abrogated form generally used in then common parlance as DNA

48
2. Like fingerprints, DNA is one of the few biometrics that can be “left behind”, like
at a crime scene

3. DNA testing is a relatively mature but dynamically evolving technology that is

becoming widely used and is familiar to the public

4. Rapid DNA identification devices are making positive identifications possible in

as little as 90 minutes

5. Ability to easily store large numbers of DNA results in databases increases the
possibility of matches

6. Standardized test chemistries and results file formats allow for interoperability
between systems

7. Well-known population statistics for human DNA markers provide high

confidence in matching operations

8. Advances in health care genomics offer promise that unknown (not in a database)
forensic DNA samples can be characterized well enough to identify the owners

2.4.3. DNA Technique Procedures

DNA is located within the nucleus of cells throughout the body and the extraction
step is responsible for breaking open the nucleus and releasing the DNA molecules into
solution. During this step it is also possible to separate the DNA molecules from all other
cellular material and any other debris that may be present in a particular biological
sample. Some of these materials can be potential “inhibitors” to steps later on in the DNA
testing procedure so it is important to try and isolate only the DNA molecules. Common
inhibitors commonly found in forensic cases are hemoglobin and indigo dyes from
denim.

One of the standards all DNA testing laboratories must meet is to ensure that the
DNA recovered from an extraction is human rather than from another source such as
bacteria. This is done through quantitation where the quality and quantity of DNA present
in a sample is measured and assessed. Additionally, determining the amount of DNA in a

49
sample is essential for success in the next step since most amplification systems require a
narrow range of input DNA.

DNA amplification is accomplished through the use of a technique known as

Polymerase Chain Reaction (PCR). PCR is a process in which millions of copies of a
specific sequence of DNA can be made in a matter of only a few hours. This is important
for forensic DNA samples since the DNA often found at crime scenes is limited in both
quantity and quality. This molecular “xeroxing” process is completed by precise heating
and cooling of the samples in a thermal cycling pattern for approximately 28 cycles.

After the PCR reaction is completed it results in a large mixture of amplified

DNA molecules which need to be separated in order to distinguish the various molecules
from one another. This is accomplished through a process known as capillary
electrophoresis. DNA molecules carry a negative charge and once an electric current is
applied to the sample the molecules enter a very thin capillary filled with a gel-like
polymer and migrate towards the positive anode at the other end of the capillary. The
PCR products are then separated by size because the smaller DNA molecules will have
an easier time migrating through the polymer than the larger DNA molecules. The data
from this process is then collected on a computer attached to the CE instrument and then
through the use of a software program a DNA profile is developed.

Samples for a DNA test, such as a paternity test, are routinely collected using the
buccal swab, similar to a cotton-tipped swab. The swab is rubbed against the inside cheek
of the test participant, and loose cheek cells adhere to the swab. The sample collector
sends the swabs to the laboratory in a sealed, tamper-evident package. Once the samples
have been received in the lab, the DNA testing begins, following these five steps:(Most
of the labs do follow this)

1. Samples from each person are divided in two. From this point on, two
independent laboratory teams take the samples through the DNA testing process
so that two seperate and independent tests are completed by two different
Scientists.

2. DNA is extracted from the buccal swabs and purified.

50
3. The extracted DNA is added to a special chemical mix for the Polymerase Chain
Reaction (PCR), a process that targets at least 16 specific locations in the DNA
(called loci) and makes billions of copies of each location.

4. The products of PCR are analyzed to create a DNA profile, a genetic equivalent
of a fingerprint for each tested party.

5. For Paternity Testing: The child’s DNA profile is compared with the alleged
father’s, and statistical analysis is performed to determine the probability of
paternity. A 0% probability of paternity represents an “exclusion” (the alleged
father is not the biological father of the tested child) and at least a 99.9%
probability represents an “inclusion” (the alleged father is the biological father).

2.4.4.Ear Biometric -

This is a visual biometric - identification of a person just by using the shape of the
ear of individual. Ear images can be acquired in a similar manner to face images, and a
number of researchers have suggested that the human ear is unique enough to each
individual to allow practical use as a biometric. According to scientific studies, ears are
remarkably consistent, he says. Unlike faces, they do not change shape with different
expressions or age, and remain fixed in the middle of the side of the head against a
predictable background. Researchers have suggested that the shape and appearance of the
human ear is unique to each individual and relatively little change occurs during the
lifetime of an adult. The medical report shows that the variation over time is most
noticeable during the period from four months to eight years old and over 70 years old29.
The ear growth between four months to eight years old is approximately linear, and after
that it is constant until around 70 when it increases again30. Ear recognition can be
accomplished using either a 2D digital image of the ear or a 3D point cloud that captures
the ear’s surface.

29
A. Iannarelli. Ear Identification. Paramont Publishing Company, 1989.
30
Ping Yan, Ear Biometrics in Human Identification, Ph. D. thesis submitted to Graduate School of the
University of Notre Dame, Indiana, 2006 p. 1, 2.

51
2.4.4.1.Advantages of ear biometric identification

Advantages of ear biometric identification are31:

1. It is passive. Unlike the fingerprint and iris, it can be easily captured from a
distance without a fully cooperative subject.

2. As compare to face, the ear recognition is a relatively most stable structure that
will not affect the change much with the age and facial expressions. The shape
does not change due to emotion as the face does, and the ear is relatively constant
over most of a person’s life.

3. The ear’s size is small and more constant color are described traits for different
pattern recognition. The equal distribution of color means that almost all
information is stored when converting the original image into gray scales.

2.4.5. Eyes IRIS Recognition -

A physiological biometric would identify a person by iris scan. Iris scanning

biometrics measures the unique patterns in the coloured circle of eye to verify and
authenticate identity of a person. The eye offers three separate feature sets for biometric
use – the Iris, the Sclera and the Retina. All three feature sets are highly unique and tend
not to change over time, allowing for highly accurate biometric matching. Iris is one of
the newer biometric modalities, but one which is rapidly gaining a foothold due to its
very high accuracy and increasing ease of use. Iris technology uses infrared cameras to
capture the unique patterns of the eye. Those patterns are then converted into a template
which is used for matching. Iris recognition is believed to be the best of breed
authentication process available today. While many mistake it for retinal scanning, iris
recognition simply involves taking a picture of the iris; this picture is used solely for
authentication. Like a snowflake, the iris – the externally visible coloured ring around the
pupil of every human eye is absolutely unique, exhibiting a distinctive pattern that forms
randomly in utero in a process called chaotic morphogenesis. It is scientifically estimated

31
Neha Kuduk, Akshada Hinge, Kirti Kshirsagar, Biometric Ear Recognition System, International
Research Journal of Engineering and Technology, Volume: 04 Issue: 1 | Jan -2017, pp. 1001-002

52
the chance of two iris (irides) being identical is 1 in 1078 (seventy eight zeros after 10, a
number which is almost out of commonality of any two human beings in the world).
Technologically speaking examining the unique features of the iris is entailed in iris
recognition. The coloured section between the white region of the eye (known as the
sclera) and the pupil is the iris. To control the size of the pupil (the part of the eye that
allows light to pass through) is its primary purpose. The trabecular mesh-work (the tissue
that gives the iris its “radial” impression) is included in the unique features of the iris and
as well as other physiological properties that is freckles, furrows, rings, and the corona.
Examining the pattern of blood vessels in the retina that is located at the back of the eye
is involved in retinal recognition. At the juncture of the optic nerve (the area where the
nerve leaves the brain and enters the eye) is focused on the examination.

2.4.5.1. Advantages of iris as a biometric

Advantages of iris as a biometric are:

1. The most accurate biometric for automated matching, with match rates
approaching almost 100% accuracy.

2. The process is ease and speed of capture, which is usually as simple as looking
briefly into a camera.

3. The iris biometric is rapidly advancing technology and therefore can now correct
for various lighting conditions, glasses, and contact lenses.

4. This iris biometric technology is increasing numbers of records in law

enforcement databases increase the possibility of a match.

Generally, iris recognition system consists of four major steps. They include
image acquisition from iris scanner, iris image pre processing, feature extraction and
enrolment & recognition. Image acquisition is a very important process as iris image
with bad quality will affect the entire iris recognition process. Equally important is the
iris image preprocessing step for mobile applications as the iris images taken by the users
are less controllable as in the controlled laboratory environment. Improper iris image

53
preprocessing can also influence the subsequent processes like feature vector extraction
and enrollment & recognition.

2.4.6. Eyes-Retina Recognition –

In visual biometric, the use of patterns of veins in the back of the eye to
accomplish recognition. The retinal scanning developed in the 1980’s is one of the most
well-known biometric technologies, but it is also one of the least deployed. Retinal scans
map the unique patterns of a person’s retina. Retinal Biometrics is a sophisticated means
for identifying people by the pattern of blood vessels on the retina. The pattern is so
complex that even identical twins do not have the same blood vessel configuration. Those
who favour its use claim retinography has an error rate of only one in a million.

2.4.6. Face recognition -

Facial recognition contains taking many images or pictures of the face and
extracting the unique facial features as well as distances from or between the nose, ears,
mouth, eyes and cheeks. The analysis of facial features or patterns for the authentication
or recognition of an individual’s identity. Most face recognition systems either use
eigenfaces or local feature analysis. Face recognition technology measures and matches
the unique characteristics for the purposes of identification or authentication. Facial
recognition does not just deal with hard identities, but also has the ability to gather
demographic data on crowds. Facial recognition system is a computer application capable
of identifying or verifying a person from a digital image or a video frame from a video
source. A facial recognition system is a computer application for automatically
identifying or verifying a person from a digital image or a video frame from a video
source. It is typically used in security systems and can be compared to other biometrics
such as fingerprint or eye iris recognition systems.

The facial recognition technology has been in use for decades, and remains one of
the most widely used biometrics. This recognition technology uses the layout of facial
features and their distance from one another for identification against a “gallery” of faces
with that of similar characteristics. The facial characteristics can be derived from either a

54
still or video images devices. Using statistics, facial recognition algorithms can measure
the differences between the face being searched and the enrolled faces in a gallery

2.4.6.1.advantages of face as a biometric

The following are advantages of face as a biometric:

1. This kind of technology is mature technology which has seen significant recent
improvements in terms of accuracy and speed of capture of images.

2. Images can be captured in the background of an interaction, reducing the need for
lengthy and intrusive capture procedures as is required in capture process.

3. The other advantage of this technology is that the images can be derived from
existing pictures or video footage – physical presence of a person is not always
required under this biometric technology.

4. The face recognition technology is having greater social acceptance than other
biometrics.

Among all biometrics listed previously, face belongs to both physiological and
behavioral categories. In addition face has advantage over other biometrics because it is a
natural, non-intrusive, and easy-to-use biometric. Probably the most important feature of
a biometric is its ability to collect the signature from non-cooperating subjects. Besides
applications related to identification and verification such as access control, law
enforcement, ID and licensing, surveillance etc., face recognition is also useful in human-
computer interaction, virtual reality, database retrieval, multimedia, computer
entertainment etc.

Face recognition mainly involves the following three tasks

Verification - The recognition system determines if the query face image and the
claimed identity match.

55
 Identification - The recognition system determines the identity of the query face
image by matching it with a database of images with known identities, assuming that the
identity of the query face image is inside the database.

Watch list - The recognition system first determines if the identity of the query
face image is in the stored watch list and, if yes, then identifies the individual.

They are being implemented face recognition systems using many techniques
examples are Gabor filter response of face image, LBG Clustering Algorithm, Kekre’s
Median Codebook Generation Algorithm (KMCG) & Kekre’s Fast Codebook Generation
(KFCG) based vector quantization, etc are implemented for feature vector extraction.

2.4.7. Fingerprint recognition–

The word Fingerprint recognition refers to the automated method of identifying or

confirming the identity of an individual based on the comparison of two fingerprints.
Fingerprint recognition is one of the most well known biometrics, and it the most used
biometric solution for authentication on computerized systems. The reasons for
fingerprint recognition being so popular are the ease of acquisition, established use and
acceptance when compared to other biometrics. A fingerprint in its narrow sense is an
impression left by the friction ridges of a human finger. The recovery of fingerprints from
a crime scene is an important method of forensic science32. Fingerprints are easily
deposited on suitable surfaces by the natural secretions of sweat from the eccrine glands33
that are present in epidermal ridges. The use of the ridges and valleys (minutiae) found on
the surface tips of a human finger to identify an individual. Verification of fingerprints
confirms that a person is indeed who they claim to be and performs a one-to-one
comparison of the individual’s fingerprint sample with a stored reference template.
Identification, on the other hand, performs a one-to-many comparison to confirm an
individual’s identity.

32
Forensic science is the application of science to criminal and civil laws, mainly—on the criminal
investigation, as governed by the legal standards of admissible evidence and criminal procedure.
33
Eccrine glands are the major sweat glands of the human body.

56
 Under biometric identification, fingerprints are the most commonly used as
indicator, and utilized in places such as identification for many governmental subsidies,
mobile applications, identification of attendance in the offices and other places where
authentication of attendance is essential and also on diverse activities such as the local
police station, nearest hospital and many places. In the recent times, the most common
method is through optical scanning, which use prisms to measure the distance between
the tiny ridges and valleys which form a fingerprint image. In advanced technological use
of figure prints, the other methods are use of thin film transistor (TFT) technology and
the method uses sound waves to capture fingerprints below the surface of the skin.
Fingerprint scanners digitize these images into unique digital templates which can then be
used to match against existing records. The location and determination of the unique
characteristics of the fingerprint are involved in fingerprint recognition. Various
“valleys” and “ridges” which form the basis for the loops, arches and swirls on your
fingertip is included in the fingerprint. Different kinds of breaks and discontinuities are
contained in the ridges and valleys. These are called as “minutiae”. The unique features
are located and determined from these minutiae. Two types of minutiae are there:
bifurcations, the location where a single ridge splits into two ridges, ridge endings i.e.,
the location where the ridge actually ends.

2.4.7.1. Advantages of fingerprints as a biometric

The finger print biometric technology is quick and easy capture of images

Latent fingerprints at crime scenes can be recorded after the subject is no longer
present – which utility is one of the few biometrics where this is possible.

In finger print biometrics, large database holdings increase the possibility of

matches.

In this technology, standardized template formats allow for interoperability

between systems.

The technique of fingerprinting is known as dactyloscopy. Until the advent of

digital scanning technologies, fingerprinting was done using ink and a card. To create an

57
ink fingerprint, the person's finger is first cleaned with alcohol to remove any sweat and
dried thoroughly. The person rolls his or her fingertips in ink to cover the entire
fingerprint area. Then, each finger is rolled onto prepared cards from one side of the
fingernail to the other. These are called rolled fingerprints. Finally, all fingers of each
hand are placed down on the bottom of the card at a 45-degree angle to produce a set of
plain (or flat) impressions. These are used to verify the accuracy of the rolled
impressions.

Today, digital scanners capture an image of the fingerprint. To create a digital

fingerprint, a person places his or her finger on an optical or silicon reader surface and
holds it there for a few seconds. The reader converts the information from the scan into
digital data patterns. The computer then maps points on the fingerprints and uses those
points to search for similar patterns in the database.

Law enforcement agents can analyze fingerprints they find at the scene of a crime.
There are two different types of prints:

Visible prints are made on a type of surface that creates an impression, like blood,
dirt or clay.

Latent prints are made when sweat, oil and other substances on the skin reproduce
the ridge structure of the fingerprints on a glass, murder weapon or any other surface the
perpetrator has touched. These prints can't be seen with the naked eye, but they can be
made visible using dark powder, lasers or other light sources. Police officers can "lift"
these prints with tape or take special photographs of them.

The finger print biometric technology is typical automated and the match rates are
higher than 98%.

2.4.8. Hand geometry Recognition -

The analysis of the shape of the hand and the length of the fingers. Hand
geometry is based on the palm and fingers structure, including width of the fingers in
different places, length of the fingers, thickness of the palm area, etc. Although these
measurements are not very distinctive among people, hand geometry can be very useful

58
for identity verification, i.e. personal authentication. This technique is widely accepted
and the verification includes simple data processing. In science, 2D hand geometry
technology is based on the features extracted from two dimensional image of the human
hand. With the advances in 3D image acquisition technology, two and three dimensional
images of the hand can be acquired simultaneously. Features from these images can be
combined to significantly improve the performance. Hand geometry identification
requires looking for unique features in the structure of the hand. These features contain
the length, thickness and width of the finger, the distances between the hand’s overall
bone structure and finger joints. Of these unique characteristics, a 3-dimensional image is
taken. As other identifiers, the hand does not contain as many unique characteristics.

2.4.9. Gait –

Gait is the manner of walking or moving on foot. Gait shows a particular way or
manner of moving on foot and gait recognition is the process of identifying an individual
by the manner in which they walk. Gait Biometrics is based on the way a person walks. It
is a behavioural type of biometrics. It does not get affected by the speed of the person's
walk. The gait biometric has demonstrated potential promises as an alternative or
complementary identifier for use in human recognition systems. The gait biometric has
demonstrated potential promises as an alternative or complementary identifier for use in
human recognition systems. Unlike other biometric technologies, gait recognition is
based on dynamic movement. In other words, the subject is, and needs to be in motion.

2.4.10. Odour -

Odour is a distinctive smell, especially an unpleasant one. Every human body

exudes an odour that characterizes its chemical composition and which could be used for
distinguishing various individuals. Human odour can be differentiated among individuals
and can therefore be seen as a biometric that can be used to identify this person. Oduor is
used by animals to recognize each other. Even twins have different scents. Dogs have
been trained to identify objects held by a specific person for forensic purposes from the
beginning of the twentieth century. Human being sense of smell (odour) is very rich, but
not used as this field is under development. So odour field is much less well understood

59
with comparison with face or voice recognition. Dogs depend on their noses to smell and
determine the direction of the air current containing the smell. Each person has his/her
own unique scent. This characteristic is very useful for dogs. They have very keen nose
that allows them to differentiate one person from another. People body odour
identification is not a new idea considering since it has been conducting for over a
century by the police force, thanks to the help of bloodhounds dogs which are trained for
such task. The ability of these dogs to follow the trail of a person from a sample of his or
hers personal odour is well known and proofs that using body odour is an effective
biometric identifier. Olfactory Biometric is the use of an individual’s odor to determine
identity.

2.4.11.Signature Recognition –

The basic goal of the handwritten signatures is to provide an accurate method in

order to verify a person’s identity based on the way in which he/she signs his/her name.
Hence for this reason, the handwritten signatures are widely accepted, socially and
legally throughout the world. There are basically two types of systems – online and
offline. Of the many possible biometrics available, the handwritten signature perhaps has
the longest history, and is the best established biometric mechanism both for identity,
cheque and transaction authorisation, and is the most widely accepted by the general
public. Signatures carry a lot of value. They have been a handy tool for identity
verification on documents and other paper based instruments. Signatures have a long
history with their roots dating to 3000 – 2500 B.C. Signature recognition systems
measure and analyze the physical activity of signing such as stroke order, pressure
applied and the speed of the pen while signing. Handwritten signature authentication is
based on systems for signature verification and signature identification. Biometric
authentication using signatures can be realized with no additional sensor except a pen and
a piece of paper. Even if a signature shape is known by others, it is possible to cope with
the problem by changing the shape. Among all of the biometric authentication systems
that have been proposed and implemented, automatic handwritten signatures are
considered as the most legally and socially accepted attributes for personal identification.
In case whether the given signature belongs to a particular person or not is decided

60
through a signature identification system whereas the signature verification system
decides if a given signature belongs to a claimed person or not. Signature-based
authentication can be either static or dynamic. In the static mode (referred to as off-line),
only the digital image of the signature is available. In the dynamic mode, also called “on-
line”, signatures are acquired by means of a graphic tablet or a pen-sensitive computer
display. It differs substantially from the way signature recognition on paper is done which
compares the visual aspects of the signature.

There are two key types of digital handwritten signature authentication, Static and
Dynamic. Static is most often a visual comparison between one scanned signature and
another scanned signature, or a scanned signature against an ink signature. Dynamic is
becoming more popular as ceremony data is captured along with the various other
software’s and co-ordinates of the signor from the signing device. Dynamic signature is a
biometric modality that uses, for recognition purposes, the anatomic and behavioural
characteristics that an individual exhibits when signing his or her name (or other phrase).
Handwritten signatures are very much dependant on the user’s psychology and has great
difference in different surroundings and time. The signature technology has reached far
enough and is being implemented in several organizations and sectors such as in banking,
insurance, government, education, retail and in many ways as authentication of an
individual. Most Handwritten signature verification techniques use the following six-step
procedure for performance evaluation are 6. The hand-written signature verification uses
the features conveyed by every signatory such that the features considered have a unique
understanding and the way of signing presents the behavioural biostatistics. Most
handwritten signature verification techniques use the following six-step procedure for
performance evaluation. They are (1) Registration: This involves capturing of a few
signatures for each individual at enrollment or registration time, (2) Pre-processing and
building reference signature(s): This involves the deletion of virtual pen-up strokes from
the raw signatures.

The main reason of virtual pen-up is not keeping enough pressure of the pen all
through the signing process. When the pressure of the pen point is less than minimum

61
pressure which the tablet can detect, it causes virtual pen-up. Usually the pressure is high
when there is straight virtual pen up or turning virtual pen up.

The required features are computed and one or more reference signatures are
produced, (3) Test signature: When a user wishes to be authenticated, he/she presents a
signature (we call this signature the test signature). The features of this test signature are
computed as usual, (4) Comparison processing: The test signature is then compared with
the reference signature(s) based on feature or feature set values and the difference
between the two is then computed using one of the distance or time measurements, (5)
Performance evaluation: For each signature that claims to be a genuine one, we compare
the distance or time computed with the threshold decided in Step 2 above. If the
difference between the two is smaller, accept the signature otherwise reject it and (6)
Steps 3–5 are then repeated for the given set of genuine signatures and forged ones; false
rejection and false acceptance rates are then computed i.e., repetition of test signature,
comparison process and performance evolution34.

2.4.12. Typing Recognition –

Typing or Keystroke dynamics refers to the automated method of identifying or

confirming the identity of an individual based on the manner and the rhythm of typing on
a keyboard. Keystroke identification works by analyzing the unique way in which an
individual character on a computer keyboard. Variables contain typing speed, the
distance of time that keys are held down, and the time taken between successive
keystrokes. Keystroke dynamics is a behavioural biometric. Keystroke dynamics uses a
unique biometric template to identify individuals based on typing pattern, rhythm and
speed. The raw measurements used for keystroke dynamics are known as “dwell time”
and “flight time.” To authenticate user based on their typing samples, it is required to find
out the resemblance of a typing samples of user regardless of the text typed.

34
Syed Faraz Ali Zaidi Shahzaan Mohammed, Biometric Handwritten Signature Recognition,
https://www.ida.liu.se/~TDDD17/oldprojects/2009/projects/006.pdf. Retrieved on 18-12-2017

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2.4.13. Vein recognition -

Vein recognition is a type of biometrics that can be used to identify individuals

based on the vein patterns in the human finger or palm. Vein recognition or as vascular
biometrics, refers to technology that measures parts of a subject’s circulatory system
which is a s unique to her as a fingerprint. Vein recognition systems are amongst the
newest biometric technologies to have emerged in the recent past. Vein authentication
uses the vascular patterns of an individual's palm/finger/back of the hand as personal
identification data.

2.4.14. Voice /Speaker recognition-

The voice is a personal characteristic that can be used to identify a person in an

unique way. Voice Biometrics is the technology used to extract personal voice patterns
and verify speaker identity using just voice. With voice recognition, it is the unique
patterns of an individual’s voice, as produced by the vocal tract, which is examined. A
text phrase is usually recited in order to capture the voice inflections. The vocal tract
consists of the oral pharynx, nasal pharynx, laryngeal pharynx, oral cavity, and the nasal
cavity. A speech recognition system is designed to assist the speaker in accomplishing
what that person wants to do. However, if an application needs to know who is speaking,
then it must authenticate the person and verify that he or she is in fact that person. The
Speech recognition and speaker verification systems are combined to create voice
biometric systems. The voice is analyzed for over 140 factors against a voiceprint that is
impossible to spoof or duplicate and cannot be reused if stolen. Voice biometrics can be
applied to secure self-service applications and can even listen to a conversation with an
agent to provide effortless authentication. Voice biometrics and voice verification
systems can be used to verify a person's claimed identity or to identify a particular
person. It is often used where voice is the only available biometric identifier, such as over
the telephone. Scientifically speaking, voice biometrics works by digitizing a profile of a
person's speech to produce a stored model voice print, or template.

Biometric technology reduces each spoken word to segments composed of several

dominant frequencies called formants. Each segment has several tones that can be

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captured in a digital format. The tones collectively identify the speaker's unique voice
print. Voice prints are stored in databases in a manner similar to the storing of
fingerprints or other biometric data. Voice verification technology uses the different
characteristics of a person's voice to discriminate between speakers. These characteristics
are based on both physiological and behavioural components. The physical shape of the
vocal tract is the primary physiological component. The vocal tract is made up with the
oral and nasal air passages that work with the movement of the mouth, jaw, tongue,
pharynx and larynx to articulate and control speech production. Voice verification
technology works by converting a spoken phrase from analog to digital format and
extracting the distinctive vocal characteristics, such as pitch, cadence, and tone, to
establish a speaker model or voiceprint. A template is then generated and stored for
future comparisons.

2.5. Conclusion:

On positive impacts of biometric technology on society, people tend to give up

some privacy for the sake of convenience, so as that the service providers are able to
provide online services for free or with nominal charges and they make use of user data
to maintain their revenue. Despite hurdles, biometrics is on its way to replace traditional
identity practices, though societies in developed nations are often more resistive towards
the implementation of biometrics or providing their biometric identifiers. In spite of this,
biometric technology precisely about efficiency and speed users admit efficiency and
accuracy of biometrics. It also gives people a confidence that their unique patters are their
identity, firming the feeling of being unique.

Use of biometric identification technology is particularly beneficial in the

countries where pollution density is very high and people have to wait in queues just
because of identification formalities. Biometrics is also beneficial for people who are
differently abled (physically or mentally challenged). They can be positively and
instantly identified with biometrics, leaving a positive impact on challenged portion of
society. Authenticating identity can also be challenging for senior citizens, which can be
effortlessly done with biometrics, providing comfort to elderly people.

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With rise of globalization, it is becoming essential to find the easier and more effective
system to help an organization to improve their employee productivity and efficiency.
This system has proved to be the most accurate, effective and more authenticated way of
registering the attendance in any of the organization i.e., the biometric attendance system.
Staff attendance management system is an easy way to keep track on attendance of staff
within organization. As part of “Digital India” program of Government of India and all
the government hospital, has been decided to implement the common Biometric
Attendance system. The proposed system would enable an employee to register
attendance by simply presenting his/her biometric (Finger prints). This event will be
authenticated online after one to one match with the biometric attribute stored in UIDAI
against the employee identification.

The Biometric authentication and attendance system is successfully working in

respect of government employees, teachers, students and a verity of occupations. Thus, in
India, Aadhaar is a 12-digit unique identity number issued to all Indian residents based on
their biometric and demographic data. The data is collected by the Unique Identification
Authority of India (UIDAI), a statutory authority established in January 2009 by the
Government of India, in accordance with the provisions of the Aadhaar (Targeted
Delivery of Financial and other Subsidies, benefits and services) Act, 2016. The Aadhaar
project has been linked to some public subsidy and unemployment benefit schemes such
as the domestic LPG scheme and Mahatma Gandhi National Rural Employment
Guarantee Act", MGNREGA). In these Direct Benefit Transfer schemes, the subsidy
money is directly transferred to a bank account which is Aadhaar-linked. The Ministry of
Petroleum and Natural Gas signed a memorandum of understanding with UIDAI. The
biometric or the Aadhaar ID system is helping in elimination of bogus beneficiaries and
from loss of the subsidised kerosene and LPG. Today Aadhar has become invariable
essential for anything from obtaining mobile SIM to that of passport. The Aadhaar
numbers were linked to ration cards to remove duplicate ration cards in many states of
the country. Know your customer and Electronic-Know Your Customer (e-KYC) using
Aadhaar card is also being introduced to activate not only mobile connections instantly to
check Aadhaar Card Status but also essential for all bank and other non-banking financial
transactions such as investment in mutual funds, insurance sector etc. In the nexts
chapter, the researcher has discussed on use of biometrics as evidence.

65
 CHAPTER – III

USE OF BIOMETRICS AS EVIDENCE

In this chapter, the researcher has extensively discussed the use of biometric as
evidence under Indian legal regime. The term biometrics is derived from the Greek words
bio means life and metric means to measure. Biometric evidence refers to evidence
secured to detect and recognize unique human physical characteristics.

According to Cambridge Dictionary, biometrics means referring to detailed

information about someone's body, such as the patterns of colour in their eyes that can be
used to prove who that person is. Biometrics is the science and technology of measuring
and statistically analyzing biological data of a person and comparable with other person
or persons. The field of biometrics encompasses “biological data” such as fingerprints
and faces, the shape of an ear, iris, retina and even gait as identification of person.

With the advent of new technology, biometric data of human being has become
accessible for utilization of it, at various forums, depending on its necessity. Biometric
identifiers such as physiological characteristics including fingerprint, palm veins, face
recognition, DNA, palm print, hand geometry, iris recognition, retina and odour/scent and
behavioural characteristics such as pattern of behaviour of a person, including, but not
limited to typing rhythm, gait, and voice. Biometric characteristics could play an
increasing role as means for binding electronic documents and transactions to a person
and for identifying that person. Biometrics is not a new idea, methods of recognizing
people using their physical or behavioural characteristics have existed for centuries. One
of the oldest and most basic examples is facial recognition. Since the beginning of
civilization, man has been using faces to differentiate between people he knew and
people he does not knew.

Biometric verification by which a person can be uniquely identified by evaluating

one or more distinguishing biological traits. Unique identifiers include fingerprints, hand
geometry, earlobe geometry, retina and iris patterns, voice waves, DNA, and signatures.
The oldest form of biometric verification is fingerprinting. Historians have found

66
examples of thumb prints being used as a means of unique identification on clay seals in
ancient China. Biometric verification has advanced considerably with the advent of
computerized databases and the digitization of analog data, allowing for almost
instantaneous personal identification.

For instance, DNA profiling is most commonly used as a forensic technique in

criminal investigations to identify an unidentified person or whose identity needs to be
confirmed, or to place a person at a crime scene or to eliminate a person from
consideration. DNA profiling has also been used in helping to clarify paternity, in
immigration disputes, in parentage testing and in genealogical research or medical
research. DNA fingerprinting has also been used in the study of animal and floral
populations and in the fields of zoology, botany, and agriculture.

3.1. Use of Biometrics identification as evidence:

The extent of reported crime incidents are increasing perilously day by day in any
modern society. Crime is an intentional act or omission in violation of criminal law,
committed without defense or justification and sanctioned by the state as a felony or
misdemeanour. It is a deviation from social norms administered by law and its type of
costs adversely affects everyone in a society to some extent. Therefore, there is an acute
need of accurate and efficient crime detection that may assist in fighting wide verities of
criminal activities. In such circumstances, linkage between crime and forensic science
becomes important.

The use of biometrics as evidence brings important legal issues, especially in

remediation, reliability, and, of course, privacy. Legal precedent on the use of biometrics
technology is growing, with key cases stretching back decades, and some recent
cases1 have raised serious questions as to the admissibility of biometric evidence in
courts of law.

Cases include U.S. v. Dionisio (U.S. Supreme Court, 1973) and Perkey v. Department of Motor
Vehicles (California Supreme Court, 1986) and Maryland v. Rose (Maryland Circuit Court, 2007).

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3.2. Use of Biometrics as Evidence in Various Countries:

The DNA Fingerprinting technology is one of the foremost and most reliable
technologies used in USA and United Kingdom in identifying individual culprits through
their respective unique DNA patterns. In 1984, Sir Alec Jeffreys discovered that no two
people could have the same DNA sequence. Although more than 99% of the DNA is the
same in all humans, there are some particular strands that are unique between two
individuals having the same sequence. Sir Jeffreys was the first person to discover this
uniqueness. These findings led to the birth of DNA Fingerprinting. The potential of DNA
Fingerprinting in the investigation of crimes was quickly realized.

In 1986, this method was used to solve the rape and murder mystery of a teenage
girl Dawn Ashworth near Leicester. Brief facts of the case is that it was in 1986, 15 year
old schoolgirl called Dawn Ashworth set off from a friend’s house in the village of
Narborough, Leicestershire, and began to walk home. Dawn lived in the nearby village of
Enderby, a few minutes’ walk away, and chose to take a short-cut along a footpath
known locally as Ten Pound Lane. And thats when she was vanished. It was not until two
days later that Dawn’s body was found in the corner of a nearby field, covered in twigs,
branches and torn-up nettles. The pathologist established that she had put up a
considerable struggle before being raped and strangled. The hunt for Dawn’s killer was
unlike any previous murder investigation, however: it was conducted with the help of a
new science. The technique known as DNA fingerprinting was employed in a criminal
investigation for the first time. Not only did this revolutionary technique lead, indirectly,
to the killer being caught; it also prevented a grave miscarriage of justice. The suspect
Richard Buckland was exonerated, and the real criminal Colin Pitchfork was found
guilty. It was the first case in which DNA technology was used. The DNA analysis has
revolutionized criminal investigation and prosecution. It has been used to secure
thousands of convictions and hundreds of exonerations.

Samples of genetic material may never be found or may be tainted. Even when
tests are conducted properly, analysts may disagree about the results. Fraud is possible,
particularly when the examiner knows the identities of all parties whose samples are
tested. The identical DNA of twins, although uncommon, may thwart analysts .

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 For example, facial recognition technology is, identification of a person by
computer based on a photograph or video, may be able to pick up where other types of
forensic evidence leave off. Imagine that of twins, ‘X” had been caught on CCTV
footage/film breaking into any one of the three homes, he was ultimately found to have
entered. Simply introducing a still image from this video in court would suffer from some
of the same deficiencies as DNA evidence, because a Court would be equally unable to
distinguish “X-a” “C-b” But a computer program can tell the difference; facial
recognition technology can even distinguish between identical twins. Had “X” had been
caught on CCTV footage/film, facial recognition evidence might have positively
identified him and saved significant prosecutorial and judicial resources. Facial
recognition technology is presently widely used and has significant utility in private and
governmental applications. The technology is already used to identify suspects and solve
crimes.

3.3. Instances of DNA evidence in criminal cases

One of the San Francisco judges ruled that biometric facial recognition could be
submitted as legal evidence in a trial. It's the first time such evidence was used in a
criminal trial, and opens the door to a series of legal questions, namely because facial
recognition technology is neither definitively accurate nor up to basic legal standards for
evidence. The case was for Charles Heard, who received a sentence of 25 years to life for
murder. A convicted murder Charles Heard received twenty-five years to life in a
California prison for murder. The case was unique because it was the first time that
biometric facial recognition technology had been permitted to be used as evidence in the
court room. A judge of California ruled that biometric facial recognition could be
submitted as evidence, marking the first time such evidence has been used in a criminal
trial; this move surprised many legal and scientific experts as it was opined by many, that
facial recognition technology does not follow basic legal standards required for evidence.

Another instance is that, Surveillance cameras captured footage of a man believed

to have shot and killed another in an armed robbery. Defense attorneys submitted still
frames from the video and offered testimony from a biometrics expert who said
comparisons demonstrate that Heard was not the shooter.

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3.4. Biometric Evidence in Criminal Cases in India

Tandoor Murder Case2 was the first criminal case in India solved with the help of
forensics. The legal issues involved are Section 302 and 120-B read with Section 201 of
Indian Penal Code, murder of wife and disposal of corpse by burning in a tandoor at
restaurant. This case was based on circumstantial evidence and also on DNA test and that
basing on the same, the conviction was confirmed.

In this case Shusil Sharma murdered his wife at home by firing three bullets in to
his wife Naina Sahni’s body. He killed his wife believing that she had love affair with her
classmate and fellow congress worker Matloob Karim. After murdering his wife, Sharma
took her body in his car to the Bagiya restaurant, where he and restaurant manager
Keshav Kumar attempted to burn her in a tandoor oven. Police recovered Sharma‘s
revolver and blood-stained clothes and sent them to Lodhi Road forensic laboratory.
They also took blood sample of Sahni's parents, Harbhajan Singh and Jaswant Kaur and
sent them to Hyderabad for a DNA test. According to the lab report, "Blood sample
preserved by the doctor while conducting the postmortem and the blood stains on two
leads recovered from the skull and the neck of the body of deceased Naina are of 'B'
blood group." Confirming that the body was that of Sahni, the DNA report said, "The
tests prove beyond any reasonable doubt that the charred body is that of Naina Sahni who
is the biological offspring of Mr. Harbhajan Singh and Jaswant Kaur." And finally Mr.
Shusil Sharma was found guilty with the help of forensic evidences.

In Ouseph alias Johny v. State of Kerala3, the appellant was convicted under
section 449, 302 IPC for committing house trespass and murder. Fingerprints were lifted
from the scene of occurrence and were also taken from the accused. Held, fingerprint
evidence is accepted by the courts on the assumption that no two individuals have
identical fingerprints. Scientific research and analysis lead to the conclusion that the
probability for the existence of two identical fingerprint patterns in the world’s
population is extremely rarest of the rare.

2
Sushil Sharma v. State (NCT of Delhi), (2014) 4 SCC 317
3
Ouseph alias Johny v. State of Kerala (12.08.1987 KERHC),MANU/KE/ 05/15/1987

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3.5. The fundamental principles of fingerprints are:

1. A fingerprint is an individual characteristic, no two fingers have yet been found to

possess identical ridge characteristics

2. A fingerprint will remain unchanged during an individual’s life time

3. Fingerprints have general ridge patterns that permit them to be systematically

classified.

Fingerprint evidence is a very valuable piece of evidence in any criminal

investigation and its importance can never be underestimated. Other evidences also
pointed towards the guilt of the accused. The appeal was dismissed and the conviction
was upheld.

In 1990 Alec Jeffreys established that DNA taken from a femur recovered from a
Brazilian graveyard was almost certainly that of Josef Mengele, a former SS officer and
physician who subjected Auschwitz inmates to grotesque medical experiments. The
match was made with samples taken from Mengele’s relatives, who declined to accept his
remains.

In 1991, scientists were able to prove that skeletal remains found in a burial pit in
Yekaterinburg, 850 miles east of Moscow, were those of Russia’s lasttsar, Nicholas II,
and his wife and children. They had all been killed in 1918, during the Russian civil war.
Matches were made with samples taken from several people related to the family,
including the Duke of Edinburgh.

In the United States, many death row inmates have been freed after being
exonerated by new DNA evidence. One of them, for example, Henry McCollum, had
served 31 years behind bars.

Familial DNA matches are increasingly bringing criminals to justice long after the
crimes were committed. One Christopher Hampton, 64, was jailed for life at Bristol
crown court after admitting that he had raped a 17-year-old girl and stabbed her to death

71
in 1984. Samples taken from the crime scene were found to match DNA taken from
Hampton’s daughter after she was arrested during a domestic dispute.

Thus, biometric traits are capable of using evidence. Once, they are being used as
evidence, the question of the legal admissibility of them as evidence and consequent
questions there to will arise. Before dealing the issue of the admissibility of the said
evidence, it is appropriate to discuss the legal system and the admissibility of evidence
under Indian Laws.

3.6. Judicial System in India

The term “law” in common legal usage is in different senses. In the plain sense it
means any rule, regulation or canon, a dogma or a norm to which the human actions are
required to conform. The entire corpus juris (body of laws) is broadly classified into two
categories, (1) Substantive laws4 and (2) Adjective laws5. There is also procedural law,
adjective law which comprises of rules of court and the rules by which a court hears and
determines the happenings in civil, lawsuit, criminal or administrative proceedings.

The rules are designed to ensure a fair and consistent application of procedure
established by law in Indian context and according to the doctrine of due process in the
United States of America or fundamental justice, in other common law countries to all
cases that come before a court. The law of evidence come under the purview of neither
substantive nor a procedural law, but come under adjective law, which means or which
defines the pleading and procedure by which substantive laws are applied in practice. It is
the machinery by which substantive laws are set and kept in motion. The law of evidence
come under adjective laws since the law of evidence provides as how to reach before the
court, how to proceed court and how to establish claim before the court, thus, law of
evidence deals with rights as well as procedures.

Characteristic features of the law of evidence in earlier civilizations and cultures

were that no distinction was made between civil and criminal matters or between fact and
law and that rational means of evidence were either unknown or little used. In general

4
Substantive law is the set of laws that governs how members of a society are to behave.
5
Adjective laws are aggregate of rules of procedure or practice.

72
scene, the accused had to prove his innocence before the adjudicatory tribunal or
authority of competency. Therefore, the law of evidence deals with the set of rules and
legal principles that govern the proof of facts in a legal proceeding. It deals with deciding
which evidence should be and which should not be used in arriving at a decision by the
Court. There are several types of evidences as admissible under the relevant law of the
land. The following are most popular evidences:

1. Oral Evidence

2. Documentary Evidence

3. Direct Evidence

4. Circumstantial Evidence is all evidence of indirect nature

5. Real Evidence

6. Personal Evidence

7. Original Evidence

3.7. Ancient India

The Judicial system provides the machinery for resolving the disputes. No society
can allow a situation to grow, where the impression prevails of there being no redress for
grievances. In ancient Indian context, India has a recorded legal history starting from the
Vedic ages and some sort of civil law system may have been in place during the Bronze
Age in India, around 3000 BCE and the Indus Valley civilization, which is the period
between 2600 BCE and 1900 BCE. Law as a matter of religious prescriptions and
philosophical discourse has an illustrious history in India. Emanating from the Vedas, the
Upanishads and other religious texts, it was a fertile field enriched by practitioners from
different Hindu philosophical schools and later by Jains and Buddhists schools as well.

The origin of the concept of evidence can be traced back to the Ancient Hindu
Period. It has been laid down in the Hindu Dharma Shastras that “the purpose of any trial
is the desire to find out the truth”. Yajnavalkya says: “Discarding what is fraudulent; the

73
King should give decisions in accordance with the true facts.” With the aim to discover
the truth from the contradictory claims made by two parties in a case the Hindu law giver
took every possible precaution. The Shastras commands, that the parties coming into the
court must be persuaded to admit the truth. Manu says: “the King presiding over the
tribunal shall ascertain the truth and determine the correctness of the testimonies of the
witness, the description, time and place of the transaction or incident giving rise to the
case as well as the usages of the country, and pronounce the true Judgment”. Three kinds
of evidences has be laid down by Vasistha which are, “Likhitam Sakshino Bukhti
Parmanam Trividham Smritham” i.e. Lekhya (Document), Sakshi (Witnesses) and
Bukhthi (Possession).

In the early Vedic times, there was no reference as regards the establishment of
Judicial Procedure. The Jurisprudence of Ancient India was shaped by the concept of
‘Dharma’6, or rules of right conduct, as outlined in the various manuals explaining the
Vedic scriptures such as ‘Puranas’ and ‘Smritis’. The King had no independent authority
but derived his powers from ‘Dharma’, which he was expected to uphold. The distinction
between a civil wrong and a criminal offence was clear. While civil wrongs related
mainly to disputes arising over wealth, the concept of sin was the standard against which
crime was to be defined7. The Maurya Dynasty, which had extended to substantial parts
of the central and eastern regions during the 4th Century, B.C., had a rigorous penal
system, which prescribed mutilation as well as death penalty for even trivial offences8.

The Manusmrti or “Laws of Manu”, is the earliest metrical work of the

Dharmaśāstra textual tradition of Hinduism written by the ancient sage Manu prescribes
ten essential rules for the observance of Dharma: Patience (dhriti), forgiveness (kshama),
piety or self control (dama), honesty (asteya), sanctity (shauch), control of senses
(indraiya-nigrah), reason (dhi), knowledge or learning (vidya), truthfulness (satya) and
absence of anger (krodha). Manu further writes, “Nonviolence, truth, non-coveting,

6
In Hinduism, dharma signifies behaviours that are considered to be in accord with truth, the order
that makes life and universe possible, and includes duties, rights, laws, conduct, virtues and right way
of living.
7
N. Prabha Unnithan, Crime and Justice in India, SAGE Publishing India, 2013
8
Gokulesh Sharma, Ancient Judicial System of India, Deep and Deep Publications, New Delhi, 2008

74
purity of body and mind, control of senses are the essence of Dharma”. Therefore
dharmic laws govern not only the individual but all in society.

Secular law in India varied widely from region to region and from ruler to ruler.
Court systems for civil and criminal matters were essential features of many ruling
dynasties of ancient India. A perfect and well organized secular court system existed
under the Mauryan dynasty (321-185 BCE) and the Mughal dynasty (16th–19th centuries)
with the latter giving way to the present common law system. The Modern Indian
Judiciary is partly a continuation of the British Raj legal system established by the British
in the mid-19th century based on a typical hybrid legal system known as the Common
Law System9, in which customs, precedents and legislative is all components of the law.
The history of judicial system in India can be classified in to three stages, (1) Judicial
System in ancient India that is Pre-Islamic invasion, (2) Judicial System in Medieval Age
and (3) Judicial System in British Rule.

In Ancient Muslim Period, it is often said that there is no real concept regarding
any highly developed Muslim rules of evidence. Al–quran stresses more on justice, as
justice is considered as one of the attributes of god. Therefore, the rules of evidence are
advance and modern. Evidence under Muslim law is divided under the heads of oral and
documentary. The oral evidence is further sub-divided into direct and hearsay.
Furthermore, the law givers followed the following order of merit, viz., full
corroboration, testimony of a single individual and admission including confession.
Documentary evidences were also recognized by the Ancient Muslim law. However, Oral
evidence appears to have been preferred to documentary. Documents executed by certain
class of people were not accepted by the court like women, children, drunkard, criminals
etc. Besides, when documents were produced, courts insisted upon examining the party
which produced them.

9
Common law is that body of law derived from judicial decisions of courts and similar tribunals. The
defining characteristic of “common law” is that it arises as precedent

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3.8. Medieval India Judicial Developments

During the British Raj, the Privy Council acted as the highest court of appeal.
Cases before the council were adjudicated by the law lords of the House of Lords. The
state sued and was sued in the name of the British sovereign in her capacity as Empress
of India. During the shift from Mughal legal system, the advocates under that regimen,
“vakils”, too followed suit, though they mostly continued their earlier role as client
representatives. Coding of law also began in earnest with the forming of the first Law
Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the
Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of
Criminal Procedure was also drafted by the same Commission. A host of other statutes
and codes like Evidence Act, 1872 and Contracts Act, 1872 were also enacted. In the post
constitution period, the existing laws which are not inconsistence with the Constitution of
India are continue to be in operation and therefore all penal and procedural laws
including the Evidence Act, 1872 are governing the civil and criminal legal system of the
country.

3.9. Modern India- the Evidence Act

The present Evidence Act governing evidence’s admissibility in the court of law
is a result of British period. Before this time, the rules of evidence were based upon the
local and traditional legal systems of different social groups residing in India. These rules
were different for almost every social group, caste, community etc which created chaos in
the legal prevalent legal system of that time. After the advent of British East India
Company in the dominion of India, it was granted royal charter by King George I in 1726
to establish Mayor’s courts in Bombay, Madras and Calcutta. These courts followed the
English rules of evidence law. On the other hand, outside these towns in mufassil courts,
there were no definite law relating to evidence. Hence, Muffasil courts were having
unfettered power in relation to evidence laws. This difference in laws resulted in chaos in
the Muffasil courts. Hon’ble CJ Peacock observed in the case of R v. Khairulla10 that,
English Law of Evidence was not the law of the mufassil courts and it was further held

10
R v. Khairulla , 6, W.R. cr. 21 decided in 1866

76
that Hindu and Muslim laws were also not applicable to those courts. There being no
fixed and definite rules of evidence, the administration of the law of evidence was far
from being satisfactory11.

In the year 1870, a new bill containing 163 sections in a form different from the
present Evidence Act of 1872 was prepared by Fitzjames Stephen. It is not clear if it was
criticised by the people of the country for whom the law was to be passed most of whom,
even the elites did not know English. Fitzjames Stephen recasted it and it ultimately
passed as Indian Evidence Act, 1872. Thus, the evidence Act which was passed by the
British parliament way back in the year 1872 which contain a set of rules and regulation
regarding admissibility of the evidences in the court of law. The Evidence Act, 1872 has
eleven chapters and 167 sections, and came into force on 1 st September 1872. Spread
Over a period of approximately 145 years since its enactment, the Evidence Act has
predominantly retained its original form except certain amendments from time to time.

3.10. The Law of Evidence and Use of Biometrics Evidence

According to Encyclopaedia Britannica, the term evidence in law is, any of the
material items or assertions of fact that may be submitted to a competent tribunal as a
means of ascertaining the truth of any alleged matter of fact under investigation before it.
To the end that, courts decisions are to be based on truth founded on evidence, a primary
duty of courts is to conduct proper proceedings so as to hear and consider evidence. The
law of evidence is made up largely of procedural regulations concerning the proof and
presentation of facts, whether involving the testimony of witnesses, the presentation of
documents or physical objects, or the assertion of a foreign law. Many rules of evidence
have evolved under different legal systems have, in the main, been founded on
experience and shaped by varying legal requirements of what constitutes admissible and
sufficient proof.

In Indian context, the Evidence Act was drafted to codify principles of evidence
and fundamental rule of evidence. According to Sections 60 of the Evidence Act, that the
oral evidence must be direct evidence. Where as Sec.59 provides that the evidence must

11
Rameshwar Dayal Agarwal, Commentaries on Indian Evidence Act, Allahabad Law Agency, 1961

77
be direct evidence. The documentary evidence includes electronic evidence. The
definition of 'documentary evidence' has been amended to include all documents,
including electronic records produced for inspection by the court.

The general meaning is concerned regarding the term “evidence” is the available
body of facts or information indicating whether a belief or proposition is true or valid.
However, as per interpretation clause of evidence Act, 1872, more particularly Section 3
defined as:

Thus, evidence means and includes:

(1) All statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are called oral
evidence;

(2) All documents including electronic records produced for the inspection of the Court;
such documents are called documentary evidence.

Provided –– A fact is said to be proved when, after considering the matters before
it, the Court; either believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists.

Section 62 of the Evidence Act provided that Primary evidence of the contents of
a document is the document itself. On reading section 63, Secondary evidence of the
contents of a document includes, amongst other things, certified copies of that document,
copies made by mechanical processes that insure accuracy, and oral accounts of the
contents by someone who has seen that document. There are situations where the original
document cannot be produced as stated in Section 65 of the Evidence Act and the
secondary evidence listed in section 63 can be used to prove its content.

The biometrics stored in the database are produced before the court of law with
the print out from the database. It is one of the form of electronic evidence. Hence, it is
appropriate to discuss the legal provisions relating to the admissibility of electronic
evidence and DNA evidence.

78
 Invention of computers and Internet made world tiny, it invades in to every walk
of human life from education to entertainment, commerce to medicine, and there was no
exception to it. Society underwent lot of changes in respect of storing and sharing of
information. Storing of information in digital form started, all these made the lawmakers
to amend the Indian Laws, to include the provisions for appreciation of digital evidence.
They introduced Information & Technology Act 2000, and further amendment act of
2008. Which amended the existing Indian Laws and recognizing the information in
digital form as evidence and its admissibility in the Court of Law. Under Information &
Technology Act, the provisions of Indian evidence Act 1872, Indian Penal Code 1980
and Bankers Book Evidence Act 1891 were amended and recognized the transactions that
carried out through electronic data, digital image and other means of electronic
communication.

3.11. Admissibility of Electronic Evidence:

While more and more documents were electronically stored, the hearsay rule
faced new challenges in the matter of digital documents. In Anvar v. P. K. Basheer12, the
Hon’ble Supreme Court noted that “there is a revolution in the way that evidence is
produced before the court”. When electronically stored information was treated as a
document in India before 2000, secondary evidence of these electronic ‘documents’ was
adduced through printed reproductions or transcripts, and the authenticity was certified.
The signatory would identify signature in court and be open to cross examination by
meeting the conditions of both sections 63 and 65 of the Evidence Act. When the creation
and storage of electronic information grew more complex, the law had to change more
substantially. By the Information Technology Act, 2000 new definitions are given to the
words “data”, “electronic record” and “computer”. Thus, the electronic record which
contains the data of an individual cab be admitted.

Even the definition of 'admission' has been changed to include a statement in oral,
documentary or electronic form which suggests an inference to any fact at issue or of

12
Anvar P.V. Vs P.K.Basheer and others. Supreme Court of India Appeal No 4228 of 2012

79
relevance. New Section 22-A13 has been inserted into Evidence Act, to provide for the
relevancy of oral evidence regarding the contents of electronic records.

Sec.4 defines the Legal Recognition of Electronic Records, Where any law
provides that information or any other matter shall be in writing or in the typewritten or
printed form, then, notwithstanding anything contained in such law, such requirement
shall be deemed to have been satisfied if such information or matter is,

1. Rendered or made available in an electronic form; and

2. Accessible so as to be usable for a subsequent reference.

Sec.5 of the Information Technology Act refers to Legal Recognition of

Electronic Signature, Where any law provides that information or any other matter shall
be authenticated by affixing the signature or any document should be signed or bear the
signature of any person the, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied, if such information or matter is
authenticated by means of electronic signature affixed in such manner as may be
prescribed by the Central Government:-

Explanation:- For the purpose of this section “signed” with its grammatical
variations and cognate expressions, shall, with reference to a person, mean affixing of his
hand written signature or any mark on any document and the expression “signature” shall
be construed accordingly.

Thus, electronic media:-“Electronic media are media that use electronics or

electromechanical energy for the enduser (audience) to access the content”.

This is in contrast to static media (mainly print media), which today are most
often created electronically, but do not require electronics to be accessed by the end user
in the printed form. The primary electronic media sources familiar to the general public
are video recordings, audio recordings, multimedia presentations, slide presentations,

13
22A of Evidence Act -- When oral admissions as to contents of electronic records are relevant.—
Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of
the electronic record produced is in question

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CD-ROM and online content. Most new media are in the form of digital media. However,
electronic media may be in either analogue electronics data or digital electronic data
format. Although the term is usually associated with content recorded on a storage
medium, recordings are not required for live broadcasting and online networking. Any
equipment used in the electronic communication process (e.g. television, radio,
telephone, desktop computer, game console, handheld device) may also be considered
electronic media.

Electronic records:- section 3 of I E Act amended and definition of documentary

evidence has been made to include all documents including electronic records produced
for inspection of the court.

Information & Technology Act:- defines electronic record as “data record, or,
data generated image, or, signed, stored, received, or, signed in electronical form, or,
micro film, or, computer generated microfiche”.

Therefore, if the stored data is printed over a document, produced evidence in the
above said forms, for example if a person video graph’s an incident and police seizes the
same and produces before the court, its a primary evidence. It can be received as it is, if
the same is copied in to a system and copied the same in to CD, DVD, memory card or
usb drive, then its secondary evidence. It is admissible subject to sections 65A and 65B
of Indian evidence act.

The Hon’ble Supreme Court in P.V.Anvar v. P.K.Bashir14 “if an electronic record

as such is used as primary evidence under Section 62 of the Evidence Act, the same is
admissible in evidence, without compliance of the conditions in Section 65B of the
Evidence Act. Our Hon’ble High court in Kurella Venkata Satyavathi v Kanyamayini
Devender Yadav 2014 (5) ALD 403, 2014 (5) ALT 152 observed that, “the recording
contained in the mobile phone on which it was recorded can be considered as the
primary evidence”. However, this issue requires some further analysis as it is
difficult for an ordinary person, technologically to differentiate between original
electronic records and copies of the same. One test that has been stated in Anvar and also

14 Supra Note no 90

81
evident from the above case, that whether the device on which the original recording has
been made was produced before the Court. The recording on that device can be
considered as primary evidence. If a copy of the said recording is made in any other
media or device, such as a Compact Disc or a flash drive then it would be secondary
evidence and it requires compliance with the provisions of 65A and 65B of IE Act.

3.12. Section 65A and 65B of IEAct.

The new provision u/sec.65-A of the Evidence Act provides that the contents of
electronic records may be proved in accordance with Sec.65-B of the Evidence Act, and
Sec.65-B provides that

(1) Notwithstanding anything contained in this Act, any information contained in an

electronic record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer (hereinafter referred to as the computer
output) shall be deemed to be also a document. If the conditions mentioned in this
section are satisfied in relation to the information and computer in question and
shall be admissible in any proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any fact stated therein of
which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be
the following, namely:-

The computer output containing the information was produced by the computer
was used regularly to store or process information for the purposes of any activities
regularly carried on over that period by the person having lawful control over the use of
the computer;

During the said period, the information of the kind contained in the electronic
record or of the kind from which the information so contained is derived was regularly
fed into the computer in the ordinary course of the said activities;

Throughout the material part of the said record, the computer was operating
properly or, if not, then in respect of any period in which it was not operating properly or

82
was out of operation during that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and

The information contained in the electronic record reproduces or is derived from

such information fed into the computer in the ordinary course of the said activities;

(3) Where over any period, the function of storing or processing information for the
purposes of any activities regularly carried on over that period as mentioned in
clause (a) of sub-section (2) was regularly performed by computers, whether---

1. By a combination of computers operating over that period or;

2. By different computers operating in succession over that period; or

3. By different combinations of computers operating in succession over that period;

or

4. In any other manner involving the successive operation over that period, in
whatever order, of one or more computers and one or more combinations of
computers, all the computers used for that purpose during that period shall be
treated for the purposes of this section as constituting a single computer; and
references in this section to a computer shall be construed accordingly.

5. (4)In any proceedings where it is desired to give a statement in evidence by virtue

of this section, a certificate doing any of the following things, that is to say---

Identifying the electronic record containing the statement and describing the
manner in which it was produced;

Giving such particulars of any device involved in the production of that electronic
record as may be appropriate for the purpose of showing that the electronic record was
produced by a computer;

Dealing with any of the matters to which the conditions mentioned in sub section
(2) relate, and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the management of the

83
relevant activities (whichever is appropriate) shall be evidence of any matter stated in the
certificate, and for the purposes of this sub-section it shall be sufficient for a matter to be
started to the best of the knowledge and belief of the person stating it.

The Hon’ble supreme court in anvar’s case at paragraph 22, page no. 486 :. “ An
electronic record by way of secondary evidence shall not be admitted in evidence unless
the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip,
etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at
the time of taking the document, without which, the secondary evidence pertaining to that
electronic record, is inadmissible.”. Therefore whenever a computer printout or copies
from the computer were taken unless the certificate under section 65B (4) is obtained, the
said evidence is not admissible in evidence.

The amendment under Sec.17 of the Evidence Act, including the statement oral,
documentary, or electronic form, which suggests to an inference of any fact at issue of
which relevance.

Under Sec.22-A of the Evidence Act has been inserted providing the relevancy of
oral evidence regarding contents of electronic records, which provides that “oral
admissions as to the contents of electronic records are not relevant, unless the
genuineness of the electronic record produced is in question”. Under Sec.39 of the
Evidence Act. When any statement is forms part of electronic record, evidence of the
electronic record must be given as the court considers necessary in that particular case to
full understanding of the nature and effect of the statement and circumstances under
which it was made.

Sec.47-A of the Indian Evidence Act: Opinion as to digital signature:- When a

court has to form an opinion as to the digital signature of any person, the opinion of the
certifying authority which has issued the Digital Signature certificate is a relevant fact.

IEAct Sec.5 provides that evidence can be given only to the facts that are in issue
and all relevant facts. Sec.136 empowers a Judge to decide the admissibility of evidence.

84
3.13. Presumptions regarding electronic reference:-

The fact which is relevant and admissible need not be construed as a proven fact.
The Judge must appreciate the fact in order to conclude that it is a proven fact.
Exceptions to the general rule existence of certain fact specified in the Evidence Act that
can be presumed by the Court. The Evidence Act has been amended to introduce various
presumptions regarding digital evidence.

3.14. Gazettes in electronic form:-

As per Sec.81-A of the Evidence Act, the Court shall presume the genuineness of
every electronic record purporting to be the official Gazettee, or purporting to be
electronic record directed by any law to be kept by any person, if such electronic record
is kept substantially in the form required by law and is produced from proper custody.

3.15. Electronic Agreements:-

Sec.85-A of the Evidence Act provides for the presumption that a contract has
been concluded where the party’s digital signatures are affixed to an electronic record
that purports to be an agreement.

Sec.85-B of the Evidence Act provides that where a security procedure has been
believed to be an electronic record at a specific time, the record is deemed to be a secured
Electronic record from such time until the time of verification, unless contrary is proved
the court shall presume that a secured electronic record has not been altered, since
obtaining secured status.

3.16. Provisions relating to a Secured Digital Signature

They are defined under Sec.15 of the Information & Technology Act, that a
secured digital signature is a digital signature which by application of security procedure
created by the party at the time that it was affixed is unique to subscriber affixing it,
capable of identifying such subscriber and created by means under the exclusive control
of subscriber and linked to the electronic record to which it relates in such a manner that
if the electronic record is altered the digital signature would be invalidated. It is presumed

85
that by affixing a secured digital signature, the subscriber intends to sign, or, prove the
electronic record in respect of digital signatures certificates.

Sec.85-C of the Evidence Act had presumed that the information elicited in the
certificate is correct, except for information specified as subscriber information which has
been verified, when the subscriber accepted the certificate.

3.17. Electronic Messages:-

As per the provision to Sec.88-A of the Evidence Act, it is presumed that an

electronic message forwarded to sender through an electronic mail, server to the
addressee corresponds the message as fed into the senders computer for transmission.
However, there is no presumption as to the person who send the message, this proviso
presumes the authenticity of electronic message and not the sender of the message.

As per Sec.90-A of the Evidence Act, FIVE years old electronic records, the
presumption is, “where any electronic record is produced from custody which the court
considers to be proper and purports, is, to be five years old it may be presumed that the
digital signature affixed to the document was affixed by a signatory, or, a person
authorized on his behalf, an electronic record can be said to be in proper custody if it is in
the property custody, in its natural place and under the care of a person under whom it
would naturally to be. At the same time the custody is not considered improper if the
record is proved to have a legitimate origin, or, circumstances of the particular case are
such as to render the origin probable. The same rule also applies to the evidence
presented in the electronic form by the official only.

The Honable Supreme Court in Tomaso Bruno & Anr vs State Of U.P on 20
January, 2015 observed as fallows while deciding an appeal in a murder case of Italian
tourist;

“27. The trial court in its judgment held that non-collection of CCTV footage,
incomplete site plan, non-inclusion of all records and sim details of mobile phones seized
from the accused are instances of faulty investigation and the same would not affect the
prosecution case. Non- production of CCTV footage, non-collection of call records

86
(details) and sim details of mobile phones seized from the accused cannot be said to be
mere instances of faulty investigation but amount to withholding of best evidence. It is
not the case of the prosecution that CCTV footage could not be lifted or a CD copy could
not be made”. Appeal is allowed and benefit of doubt was extended and accused were
acquitted. The observations of Hon’ble Apex court considering CCTV footage and
mobile call records as best evidence shows the importance of electronic records. To give
proper value to the electronic records, every stake holder who are bound to protect the
law shall be familiar with todays technology and raise to the occasion for proper
application of electronic evidence.

Another area to be discussed is DNA evidence, since it is one of the generally

authenticated and more acceptable in today’s world. It can be interpreted by forensic
doctors. The term “forensic science” implies the use of a scientifically based discipline as
it intersects with and provides evidence for legal proceedings.

For instance, in US the Federal Rules of Evidence (FRE) set out the framework
within which evidence is admitted into court. The primary rules that apply to expert
witnesses are FRE 70215, Testimony by Experts; and FRE 703, Bases of Opinion
Testimony by Experts16. The upshot of this for biometric systems and technologies is that
the admissibility of biometric evidence in the United States will not be consistent
throughout the country. States may differ on what is reliable, and even judges in a given
state may sometimes differ. On the other hand, over time, a consensus will emerge in
some areas. Polygraph evidence, for example, is generally denied admission in

15
Rule 702. Testimony by Expert Witnesses - A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
16
Rule 703. Bases of an Expert - An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible,
the proponent of the opinion may disclose them to the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial effect.

87
court while DNA evidence is generally admitted17. There is no federal law protecting
biometric information. Instead plaintiffs are turning to the Illinois Biometric Information
Privacy Act. The law, passed in 2008, is still in its early phases, but the outcome of cases
under BIPA will likely play an integral role in shaping the law in this area and serve as an
example that other states may follow or improve upon18. The United States Title 8
Chapter 12 Subchapter III Part II § 1440 f deals with Fingerprints and other biometric
information for members of the United States Armed Forces.

In the United Kingdom, the National DNA Database is a national DNA Database
that was set up in 1995. By 2005, it had profiles of around 3.1 million people and 5.7
million profiles by 2015. The database, which was growing in 2007 by 30,000 samples
each month, is populated by samples recovered from crime scenes and taken from police
suspects although data for those not charged or not found guilty are deleted. The issue of
taking fingerprints and a DNA sample was involved in a case decided at the High
Court in March 2006. A teacher who was accused of assault won the right to have her
DNA sample and fingerprints destroyed. They had been taken whilst she was in custody,
but after the Crown Prosecution Service, it had decided not to pursue any charges against
her. She should have been released expeditiously once this was the case and so her
continued detention to obtain samples was unlawful, and thus the samples were taken
"without appropriate authority". After the 2012 Protection of Freedoms Act, they would
have had to be destroyed within a specified period of time. The DNA Database's
indefinite retention policy was abolished by the 2012 Protection of Freedoms Act. Prior
to this, a test case was filed by two claimants from Sheffield, Mr. S. and Michael
Marper19, both of whom had fingerprint records and DNA profiles held in the database. S
and Marper were supported by the Liberty and Privacy International, non-profit pressure
groups who were permitted to make amicus brief submissions to the court. In the United
Kingdom, under the ID scheme, every legal adult resident in the UK would be issued a

17
Julian Adams, Nuclear and mitochondrial DNA in the courtroom, Journal of Law and Policy 13:69
(2005).
18
Biometric Information Privacy Act. (740 ILCS 14/1)
19
S and Marper v United Kingdom [2008] ECHR 1581 is a case decided by the European Court of
Human Rights which held that holding DNA samples of individuals arrested but who are later
acquitted or have the charges against them dropped is a violation of the right to privacy under the
European Convention on Human Rights.

88
unique number and a card linked to biometric information. The ID documents would be
linked to a National Identity Register, consisting of a database where up to 50 categories
of information for each individual would be stored in a centralized format. Since
individuals would be required to register updates to their data, and logs would be created
documenting every time the card was used, privacy advocates worried that the scheme
would give rise to a kind of “lifelong surveillance” that would erode individuals’ privacy
and diminish the sense of living in a free society. Earlier when the UK Home Office
announced its plans to implement a national biometric identity card, alarm bells went off
for privacy advocates – and the battle lines were drawn for a persistent opposition
campaign that finally claimed victory eight years later.

Forensics techniques are being used in the investigation of criminal activities as

traditional methods. “Forensic science” begins with the effective identification,
documentation including collection of notes, photographs, sketching and videos of crime
scene, collection and preservation of physical cover ring items of non-living origin such
as fingerprints, footprints, fibers, paint, tire or shoe impression, weapons and biological
evidence, originated from a living source and includes DNA, other bodily fluids, hair,
skin and bone material at the crime scene. The evidence is then subjected to scientific
analysis in the forensic laboratory and the results of the examinations yield forensic
evidence for consideration by court. Ultimately, the evidence will be presented as proof
that a crime was committed and will prove the identification of the criminal. However,
there are certain limitations of forensic science in criminal identification and today,
forensic science is facing number of challenges in the process of crime detection. In view
of the shortcomings, the use of biometrics has invariably become strong alternative for
crime detection.

In the course of investigation, producing evidence before the court, which always
should be beyond reasonable doubt, where Biometrics is one of the most fascinating ways
to solve the crime. It is an automated way to establish the identity of a person on the basis
of his or her physical features such as finger print, face, hand/finger geometry, iris, retina,
ear, etc. and behavioural characteristics like signature, voice, gait, odour, etc. Biometric
technology makes a contribution to crime detection by associating the traces to the

89
persons stored in the database, ranking the identity of persons and selecting subdivision
of persons from which the trace may originate. A biometric system is a pattern
recognition device that acquires physical or behavioural data from an individual, extracts
a salient feature set from the data, compares this feature set against the features set stored
in the database and provides the result of the comparison .

The Technological developments have great impact on social interaction as well

as individual actions. Impact of technology is not referred only in terms of modern
technology like Information Technology, automobile or communication but also in many
spheres including identification of a person in millions of human beings.

In the recent past, technology and society share an inseparable relationship of

cyclical co-influence, co-dependence, and co-production throughout the world. It is an
universal fact that technology has had both positive and negative impact on human lives
and society, in spite of this demand of more efficient tools and machines keep growing.
When a new technology reaches people, claiming to accomplish or improve a certain
aspect of life, it first has to get recognition from people before it is adopted by the
society. If people find it worth adopting, it creates same cyclic co-dependence and finds
its place in the society. Smart phones are good examples of the technological co-
dependence on society in recent years. The similar interaction is expected by the
evolution of electric and self-driving vehicles and other smart devices in coming future.

In recent years, traditional methods of personal identification are challenged by

biometric technology and it has been enjoying increased adoption rate across the globe.
Like other technologies, biometrics has also impacted society; however, impact of
biometrics cannot be entirely compared with other forms of technological adoption.
Biometrics leverages personally identifiable biological patterns of human being to
uniquely identify them. Fingerprints and some other forms of recognition have been
largely used in forensics and law enforcement for more than 100 years.

Combination and association of biometrics with forensics and law enforcement

makes people skeptical as capturing fingerprints or other biological patterns were only
limited to criminals and anti-social elements in the past. Increasing awareness with the

90
spread of information technology, computers and other gadgets and extensive utility and
usage of Internet, people are getting aware about the strengths as well as shortcomings
and risk associated with this technology.

There is a constant battle between right to privacy and utility of biometric

technology for firms and the governments as well. Discussing from the government point
of view at least in Indian context, the government want implementation of the biometric
technology for identification. Technology firms and advocates for the use of biometrics
talk about the efficiency, speed and accuracy of biometrics while people advocate for
privacy highlights its negative aspects. Such biometric identification confuses people and
social adoption of biometrics face hardships. This phenomenon is more evident in
societies of developed nations where people are more aware and concerned about their
privacy. They feel that biometric technology based personal recognition violates
constitutional rights of their privacy and civil liberties.

The Code of Criminal Procedure and the Indian Evidence Act were enacted at a
time when modern scientific advancement and DNA tests were not even in the
contemplation of Parliament or legislature. Worldwide, it has been proven that the results
of DNA test, if conducted in conformity with modern and latest protocol on the subject,
are scientifically accurate.

Section 53 of the Code of Criminal Procedure, 1973, authorises a police officer to

get the assistance of a medical practitioner in good faith for the purpose of the
investigation. But, it does not enable a complainant collect blood, semen etc for bringing
criminal charges against the accused. The CrPC (Amendment) Act, 2005, has brought
two new sections which authorise the investigating officer to collect DNA sample from
the body of the accused and the victim with the help of medical practitioner. The
introduction of DNA technology is being perceived to pose serious challenge to some
legal and functional rights of an individual such as ‘Right to privacy’ and ‘Right against
Self-incrimination’.

The researcher has examined the issues relating to Right to privacy and Right
against self incrimination to a limited extent with respect to the admissibility of DNA as

91
evidence only. Right to privacy has been included under the right to life and personal
liberty under Article 21 and 20 (3) of the Constitution of India, which provides with right
against self-incrimination, which protects an accused in criminal cases from providing
evidence against himself or evidence which can make him guilty. But it has been held by
the Hon’ble Supreme Court on several occasions that right to life and personal liberty is
not an absolute right. In Govind Singh v. State of Madhya Pradesh20, the Hon’ble
Supreme Court held that a fundamental right must be subject to restrictions on the basis
of compelling public interest i.e., subject to reasonable restrictions. In this case, Hon’ble
Supreme Court held that a fundamental right must be subject to restriction on the basis of
compelling public interest. It is clear from various decisions which have been delivered
by the Hon’ble Supreme Court from time to time that the Right to Life and Personal
Liberty which has been guaranteed under our Indian Constitutions is not an absolute one
and it can be subject to some restriction. And it is on this basis that the constitutionality
of the laws affecting Right to Life and Personal Liberty are upheld by the Hon’ble
Supreme Court which includes medical examination. It is on the basis that various courts
in the country have allowed DNA technology to be used in the investigation and in
producing evidence. To make sure that modern technologies can be used effectively,
there is an urgent need of a specific legislation which would provide the guidelines
regulating DNA testing in India. In India, the legal position of forensic technique has to
pass through a three-fold litmus test viz.

What is the constitutional validity of such test?

What is the evidential value of the forensic information obtained from the experts?

In the absence of any concrete legislation what stand is taken by judiciary

regarding admissibility of DNA forensics?

The discussion on DNA and self-incrimination may be explored on the basis of

argument that the use of DNA tests in criminal cases, it would be pertinent to see if it
offends the fundamental right of person against self-incrimination. A Constitution Bench

20
State of M.P. Vs. Govind [2005] Insc 537 (4 October 2005)

92
of the Hon’ble Supreme Court, in Selvi v. State of Karnataka21, while testing the validity
of DNA tests on the anvil of Article 20(3) of the Constitution of India, made following
observation, ―.

The matching of DNA samples is emerging as a vital tool for linking suspects to
specific criminal acts. It may also be recalled that as per the majority decision in Kathi
Kalu Oghad22), the use of material samples such as fingerprints for the purpose of
comparison and identification does not amount to a testimonial act for the purpose of
Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of
physical evidence does not face constitutional hurdles in the Indian context. Further on
Statutory Recognition, it may be noted that the Explanation to Sections 53, 53A and 54 of
the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of
medical examination of the accused, especially with regard to the extraction of bodily
substances, and in particular, to use of DNA Profile technique.

On right against self-incrimination, in Krishna Kumar Malik v State of Haryanai,

the Hon’ble Supreme Court in a rape case observed, ―Now, after the incorporation of
Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice
by learned counsel for the Respondent-State, it has become necessary for the prosecution
to go in for DNA test in such type of cases, facilitating the prosecution to elicit the truth
prove its case against the accused. Prior to 2006, even without the aforesaid specific
provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting
the DNA test or analysis and matching of semen of the Appellant with that found on the
undergarments of the prosecutrix to make it a fool proof case.

Mention may be made about the case of Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik & Anr23, on not allowing DNA test to prove the paternity of child. As a
matter of right against self-incrimination. In the instant case, a special leave petition
directed against the order of High court for not allowing DNA test to prove the paternity
of child. The appellant preferred a Special Leave Petition before the Hon’ble Supreme

21
Selvi v. State of Karnataka (2010) 7 SCC 263
22
Kathi Kalu Oghad (AIR 1961 SC 1808),
23
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr, (2014) 2 SCC 576

93
Court against the order of Hon’ble High Court. Hon’ble Supreme Court dismissed the
order of High court and favored the appellant to order for DNA test on a condition that
the appellant petitioner to deposit all dues, both arrear and current, in respect of the
maintenance awarded to the wife and child to enable to consider the prayer for holding of
such DNA test. The Hon’ble Supreme Court has ordered the appellant and respondent to
make a joint application to the Forensic Science Laboratory, Nagpur, for conducting
DNA test. The appellant, the respondent No. 1 shall present themselves at the Laboratory
with respondent No. 2. The laboratory is directed to send the result of such test to the
Court within four weeks thereafter. The Forensic Science Laboratory has submitted the
result of DNA testing and opined that appellant is excluded to be the biological father of
respondent no. 2. By the said order, the respondent has not been satisfied so she requested
for re-test. The Court directs that a further DNA test be conducted at the Central Forensic
Laboratory, Hyderabad. The parties are directed to appear before the Laboratory. The
Central Forensic Laboratory submitted its report and opined that the appellant can be
excluded from being the biological father of respondent no.2. The respondents counsel
submits that the appellant having failed to establish that he had no access to his wife at
any time when she could have begotten respondent no. 2, the direction for DNA test
ought not to have been given. In view of the aforesaid, he submits that the result of such a
test is fit to be ignored. To justify his claim the respondent‘s counsel relied on the
judgment of Hon’ble Supreme Court in Goutham Kundu v. State of West Bengal, Banarsi
dass v Teeku Dutta, Bhabani Prasad Jena v. Orissa State Commission for Women.

In all most all the cases, the court ruled that blood test as well as DNA test cannot
be ordered as a routine. The result of a genuine DNA test is said to be scientifically
accurate. But, that is not enough to escape from the conclusiveness of Section 112 of the
Evidence Act e.g. if a husband and wife were living together during the time of
conception, but the DNA test revealed that the child was not born to the husband, the
conclusiveness in law would remain irrebuttable. The appellant‘s counsel raised the
contention that the DNA test had already been ordered and the respondent had also not
denied. It is only after the reports of the DNA test had been received, which was adverse
to the respondents, that they are challenging it on the ground that such a test ought not to
have been directed. We cannot go into the validity of the orders passed by a Court at this

94
stage. It has attained finality. Before, the Hon’ble Supreme Court proceeds to consider
the rival submissions analyzing the DNA test that we deem it necessary to understand
what exactly DNA test is and ultimately its accuracy. All living beings are composed of
cells which are the smallest and basic unit of life. An average human body has trillion of
cells of different sizes.

The Hon’ble Supreme Court ruled and evolved a beautiful concept that,

“We may remember that Section 112 of the Evidence Act was enacted at a time
when the modern scientific advancement and DNA test were not even in contemplation
of the legislature. The result of DNA test is said to be scientifically accurate. Although
Section 112 rises a presumption of conclusive proof on satisfaction of the conditions
enumerated therein, but the same is rebuttable. The presumption may afford legitimate
means of arriving at an affirmative legal conclusion. While the truth or fact is known, in
our opinion, there is no need or room for any presumption. Where there is evidence to the
contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best
served by ascertaining the truth and the court should be furnished with the best available
science and may not be left to bank upon presumptions, unless science has no answer to
the facts in issue. In our opinion, when there is a conflict between a conclusive proof
envisaged under law and a proof based on scientific advancement accepted by the world
community to be correct, the latter must prevail over the former.”

This ruling helps the innocent husband to prove his non-access by way of DNA
test. For the first time, the Court favors the innocent husband to prove his paternity claim.
Here, the court gives priority to DNA test under Section 45 of the Indian Evidence Act,
1872 over the legitimate presumption under Section 112 of Indian Evidence Act, 1872. It
is really a welcoming step and by that way our Hon’ble Supreme Court has enforced the
fundamental duties enunciated under Article 51A (h) and (j) of Part IV A of the Indian
Constitution.

There have been several ethical concerns regarding DNA tests. Some people
allege that it violates the right to privacy, right to life and right against self-incrimination

95
according to Article 20 of Indian Constitution. According to the existing provisions of
laws on evidence and also in accordance with the spirit of the constitution of India,

Indian law says that one cannot be forced against his/her will to give DNA
evidence. But today in certain cases, courts are forcing suspects to undergo DNA tests.
As in the ND Tiwari case, all these arguments were raised. But the court forced ND
Tiwari to give his blood sample in the larger interest of the public. Courts can force
people to give their blood samples to meet the demands of justice.

The Law Commission of India recently issued a new Draft Bill on Human DNA
Profiling, looking at the creation of DNA data banks at the national and regional levels.
The new Bill makes substantial changes to the previous draft of 2015. It includes removal
of the volunteers' index and new indices, specifying serious offences for DNA collection,
allowing anyone to approach the courts for redressal, and removal of discretionary
powers of the database manager. The idea of a Human DNA profiling bill was mooted
first by previous NDA Government in 2003. Since then, it has been discussed in various
parliamentary committees, but has not seen the light of the day. In 2015, it has been once
again proposed by the current NDA government. The bill will allow the government to
establish a National DNA Data Bank and a DNA Profiling Board, and use the data for
various specified forensic purposes. The bill has raised concerns of privacy among citizen
rights groups. The bill has been criticised for not addressing the concerns of privacy24.
The Citizens Forum for Civil Liberties has opposed the bill on privacy concerns and sent
a complaint to the National Human Rights Commission of India in 201225.

In India, social protection programmes are often plagued with leakage and
corruption, and beneficiaries are being facing several challenges in accessing payments or
other subsidies. One of the most promising attempts to increase state capacity to
effectively implement programmes of the country’s ambitious initiative to provide all
residents with biometrically-authenticated 12 digit Aadhar numbers linked to bank
accounts, which can be used to directly transfer benefits. While this is a promising

24
Centre's ambitious DNA Profiling Bill hits privacy roadblock, India Today. 15 September 2014.
Retrieved on 31-12-2017
25
Bill to create bank for DNA profiling of accused coming, . The Hindu. 21 October 2012. Retrieved
on 31-12-2017

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initiative, sceptics have raised several concerns including implementation challenges,
subversion by vested interests, exclusion errors, and cost effectiveness and so on.

Negative impacts of biometric technology on society also require equal discussion

and attention. In any society, privacy is the biggest concern that people have with
biometric technology. Biometric recognition has been associated with forensics and law
enforcement applications, consequently various conspiracy theories are bound to emerge.
It gave people a feeling and apprehension that government is conspiring to watch their
activities and they will lose their anonymity with biometrics. It is human psychology that
even if people are not breaking any law, they do not like to be watched or their actions
being tracked. Face biometrics can create a biometric profile out of an individual’s social
media photos, which can be used in mass surveillance applications or identifying person
in a crowd. This feeling of being watched or non-anonymity, however, is expected to be
taken over by the need of convenience as there can be multiple instances in a day where
people need to be identified and authenticated, and with traditional means, it becomes a
cumbersome task.

With increasing numbers of data breaches year by year, people are afraid what if
hackers steal their biometric data. Since biometrics of a person cannot be changed if
compromised, fear of losing biometric data holds back social acceptance of this
technology. Risk of Aadhaar biometrics may involve hacking biometric data as unlike
passwords, can never be changed, so if hackers successfully impersonate a fingerprint
then they can cause serious havoc and there is not much the victim will be able to do
about it. Furthermore, some people in a social setup may feel like left-out with biometrics
whose biometric characteristics have been impaired by disease, working conditions or
accident, so biometrics makes a negative impact on society in this aspect.

In India, the biggest ever financial data leak compromised 32 lakh debit cards of
half a dozen banks in October 2016. In May 2017, Aadhaar numbers along with bank
details of over 10 crore people were leaked through government portals. The Tribune’s
expose of the ease with which Aadhaar data can be accessed is the third major instance of

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data leak in the past one year26. In criminal justice system, evidences derived by forensic
methods are gaining more and more importance in criminal justice. These are produced
using objective scientific methods from samples taken from suspects and victims or
exhibits found in the crime scene. The advantages of forensic evidence over evidence
derived from human sources, i.e. by interrogation or by diverse intelligence means, such
as wiretapping, are clear. Courts are seeking all kinds of forensic evidence provided their
scientific basis, which is sound and the competence of the laboratories producing them is
unequivocally proven. There is nothing like a single fingerprint in the crime scene, whose
owner fails to explain how it got there, in order to significantly enhance the chance for
his conviction. On top of that, two very significant developments occurring during the
last few decades enhanced even further the importance and strength of forensic evidence
in criminal justice: (a) The scientific detection and identification methods became much
more sensitive, accurate and multi-disciplinary: it is now possible to determine a DNA
profile from only a few cells, and the chemical composition of an unknown material from
minute or even invisible amount of it. (b) Technologies related to computer sciences, data
basing, retrieval and comparison of information have become extremely fast and
accurate. It is possible today to establish huge databases and efficiently search them for
comparing data27.

The Law Commission of India in its 185 th Report on Indian Evidence Act, 1872,
while reviewing the law of evidence in India with reference to the recent technological
developments and their applicability in evidence has came up with certain
recommendations and also a draft amendment bill. However, the Bill is yet to be passed.

These specific recommendations made by the Commission which attain

significance as they seek to update the Act after the change in position or appreciation of
the principles, as affirmed by the Courts and authors in biometric/electronic evidence.

The definition of ‘court’, as suggested in the 69th Report was rejected so as not to
extend the provisions of the Act to revenue courts, tribunals and satisfied with the

26
The Tribune, Aadhaar data leaked, Perils of discounting cyber security, content posted on 6-1-2018.
27
A. Kumar and D. Zhang (Eds.), Ethics, Policy and Biometrics, Springer-Verlag Berlin Heidelberg,
2010, pp. 27–39,

98
existing definition of the Court under the Act, the Commission made no recommendation
on this aspect. This seems to be an appreciable step indeed as after all, if the Revenue
Court and the Tribunals have been established with speedy trial and lack of procedural
compliances as one of the guiding factors, they must be kept beyond the periphery of the
Evidence Act as far the requirement to strictly follow the rules regarding admission of
evidence is concerned.

The recommendation regarding the definition of ‘document’ is commendable. The

Commission observed that the definition already covers any type of document including
electronic records after the amendment to the Act and incorporation of section 65-A and
65-B. Yet, to take into account the recent developments in the field of technology and
law and more specifically, when document was more broadly defined under section 3(18)
of the General Clauses Act, there was a need to amend the existing definition. Accepting
a comment of the British author, the Commission has observed that while computer
generated information should be treated similar to other records, its weight must depends
on its reliability and parties may be needed to provide information as to the security of
their computer system. Thus greater room is provided for admissibility of electronic
evidence or evidence produced by other technological means.

The Commission, having discussed the position of DNA evidence in both English
and Australian laws, observed that there was no need to provide a specific mention to
include DNA evidence under the Act specifically after the ruling of the Hon’ble Supreme
Court in Kamta Devi v. Poshi Ram28 wherein DNA evidence was not held to be
admissible when the law provided for an assumption. However the Commission did not
preclude the possibility of leading in DNA evidence by the parties and thus observed that
in case of refusal of a party to submit to the DNA test, no provision could be
recommended and it was upon the Court to draw the inference against the refusing party
as it decided.

In the landmark decision of United States District Court for Maryland in Lorraine
v. Markel American Insurance Company29 in 2007 held that when electronically stored

28
Kamti Devi v. Poshi Ram (AIR 2001 SC 2226)
29
Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, (D.Md. May 4, 2007)

99
information is offered as evidence, the following to be ascertained. (i) is the information
relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original or, if it is a duplicate, is
there admissible secondary evidence to support it; and (v) does its probative value
survive the test of unfair prejudice.

In Indian context, in Amar Singh v. Union of India30, all the parties, including the
state and the telephone company, dispute the authenticity of the transcripts of the CDRs,
and the authorisation itself and in Ratan Tata v. Union of India31, a CD containing
intercepted telephone calls was introduced in the Hon’ble Supreme Court without
following any of the procedure contained in the Evidence Act.

In Anvar v. P. K. Basheer32 to declare new law in respect of the evidentiary

admissibility of the contents of electronic records, overruled the earlier Supreme Court
judgment i.e., State (NCT of Delhi) v. Navjot Sandhu alias Afsal Guru33 and the
application of Sections 63, 65, and 65B of the Indian Evidence Act, re-interpreted by
Technical Conditions upon which a copy of an original electronic record may be used can
be seen in S. 65B(2) as (i) at the time of the creation of the electronic record, the
computer that produced it must have been in regular use; (ii) the kind of information
contained in the electronic record must have been regularly and ordinarily fed in to the
computer; (iii) the computer was operating properly; and, (iv) the duplicate copy must be
a reproduction of the original electronic record. The non-technical conditions to establish
authenticity of electronic evidence in section 65B (4) requires the production of a
certificate by a senior person responsible for the computer on which the electronic record
was created, or is stored. The certificate must identify the original electronic record,
describe manner of creation, the device created it, and certifying compliance of sub-
section (2) of section 65B.

With this back ground, the law evolved by Judgements on the subject of
electronic evidence are such that the Hon’ble Supreme Court observed in Yusufalli

30
Amar Singh v. Union of India (2011) 7 SCC 69
31
Ratan Tata v. Union of India W. P (C) 398 of 2010,
32
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473
33
State (NCT of Delhi) v. Navjot Sandhu alias Afsal Guru (2005) 11 SCC 600

100
Esmail Nagree v. State of Maharashtra34, that since the tape - records are prone to
tampering, the time, place and accuracy of the recording must be proved by a competent
witness. It is necessary that such evidence must be received with caution. The Court must
be satisfied, beyond reasonable doubt that the record has not been tampered with. Again,
the Hon’ble Supreme Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdas Mehra and others35 held as under:

"We think that the High Court was quite right in holding that the tape - records of
speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on
no different footing than photographs, and that they were admissible in evidence on
satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly dentified by the maker
of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record
and satisfactory evidence, direct or circumstantial, had to be there so as to rule out
possibilities of tampering with the record.

(c) The subject - matter recorded had to be shown to be relevant according to rules of
relevancy found in the Evidence Act."

3.18. Biometrics and cultural, social and legal considerations:

In the contemporary world, Biometric systems assume and require an intimate

relationship between people and technologies that collect and record the biological and
behavioural characteristics of their bodies. It is therefore incumbent upon those who
conceive, design, and deploy biometric systems to consider the cultural, social and legal
contexts of these systems. There are several social issues that affect fingerprint biometric
technology like misunderstanding the usage of the device of technology. The efficacy and
accuracy of a biometric system can be affected by the cultural, social, and legal
considerations. It is natural that at times people’s deliberate choices about whether and

34
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147
35
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and others, 1976 (2) SCC 17 : (AIR
1975 SC 1788)

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how to engage and their inadvertent actions both affect system performance. Hesitation is
also one of the issues relating to biometric, new users sometime hesitate to use new
technology. As a matter of example, sometimes some people may choose not to place
their fingers on a fingerprint scanner for fear of contracting a disease or may be unable to
do so because long fingernails are highly valued by their social group and also some
people may avoid having their photographs are captured for a face recognition system
because of concerns doubt over how the images will be used; others will avoid this owing
to concerns about the absence of customary adornments to the face. The privacy concerns
can be leaving the fingerprints all over the place on daily basis work we do. But when a
user is involved in using fingerprint technology user might worry about the privacy36.

Biometrics as a matter of the potential to collect and aggregate large amounts of

information about individuals may also raise cultural issues. Every discussion revolves
around the issue of biometric technologies and systems that takes place without reference
to privacy concerns, surveillance potential, and concerns about large databases of
personal information being put to unknown uses. Privacy issues arise in a cultural context
and have implications for individuals and society even apart from those that arise in legal
and regulatory contexts. The problems arising from aggregating information records
about individuals in various information systems and the potential for linking those
records through a common identifier go well beyond biometrics, and the challenges
raised have been addressed extensively elsewhere37.

In the western advanced countries such as the United States, the use of biometrics
brings with it important legal issues, especially relating to remediation, reliability, and, of
course, privacy. Legal precedent on the use of biometrics technology is growing, with
key cases stretching back decades38, and some recent cases in the United States of

36
Essays, UK. (November 2013). The Social Issues Of Fingerprinting Biometrics Information
Technology Essay. Retrieved from https://www.ukessays.com/essays/information-technology/the-
social-issues-of-fingerprinting-biometrics-information-technology-essay.php?cref=1 (Retrieved on
31-12-2017)
37
Joseph N. Pato and Lynette I. Millett, Editor, Biometric Recognition: Challenges and Opportunities,
National Academies Press, Washington.
38
For example, the U.S. v. Dioniosio (Supreme Court, 1973 and Perkey v. Department of Motor
Vehicles (California Supreme Court, 1986).

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America have raised serious questions as to the admissibility of biometric evidence in
courts of law.

In Indian context, it was in 2009, the government of India launched a new

identification program that has gone on to become the largest biometric database in the
world. The program, known as Aadhaar, has collected the names, addresses, phone
numbers—and perhaps more significantly, fingerprints, photographs, and iris scans—of
more than 1 billion people. In the process, Aadhaar has taken on a role in virtually all
parts of day-to-day life in India, from schools to hospitals to banks, and has opened up
pathways to a kind of large-scale data collection that has never existed before. The
government’s view on such biometric identification is a key solution for a myriad number
of societal challenges, but critics see it as a step toward a surveillance state. In 2017
August, the Hon’ble Supreme Court issued a unanimous decision that found, for the first
time, a fundamental right to privacy in the Indian Constitution. The decision has been
widely celebrated by Aadhaar’s opponents, who believe that the program is in conflict
with the newly enshrined right. Soon, if the Hon’ble Supreme Court would direct its
attention to this very issue, and if they find that Aadhaar violates privacy rights, it will be
up to lawmakers to rethink the entire program. But if the Supreme Court rules that the
program is constitutional, then Aadhaar, already staggering in scope and ambition, will
continue to grow39.

The Biometric identification systems assume and require an intimate relationship

between people and technologies that collect and record the biological and behavioral
characteristics of their bodies. Therefore, it is a condition precedent upon those people,
agencies who conceive, design, and deploy biometric systems to consider the cultural,
social and legal contexts of these systems. Ignoring these considerations and failing to
consider social impacts diminishes, their efficacy and can bring serious unintended
consequences.

39
Namrata Kolachalam, The Privacy Battle Over the World's Largest Biometric Database, A new
ruling could jeopardize India’s controversial collection of citizens’ fingerprints, photographs, and iris
scans, The Atlantic daily, 5-9-2017

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 Important social issue surrounding biometrics is the seemingly irrevocable link
between biometric traits and a persistent information record about a person. Unlike most
other forms of recognition, biometric techniques are firmly tied to one’s physical body.
The tight link between personal records and biometrics can have both positive and
negative consequences for individuals and for society at large as well. On the advantages
side, convenience, improved security, and fraud reduction are some of the benefits which
are often associated with the use of biometrics. Those benefits may flow to particular
individuals, corporations, and societies but are sometimes realized only at the expense of
others. Thus, there arises as to who benefits at whose expense and the relative balance
between benefits and costs can influence the success of biometric deployments question.
In biometric identification technology, efficacy of a system can be affected by the
cultural, social, and legal considerations that shape the way in which people engage and
interact with these systems. People’s deliberate choices about whether and how to engage
and their inadvertent actions both affect system performance. For example, some people
may choose not to place their fingers on a fingerprint scanner for fear of contracting a
disease or may be unable. As a matter of fact, peoples’ willingness to participate in a
system and their commitment to it depend on their understanding of its benefits. For
example, a biometric system that allows convenient access to a worksite might be
perceived as beneficial to individuals by relieving them of the necessity to carry
Identification Cards. On the other hand, a biometric system that tracks daytime
movement of employees might be perceived as primarily beneficial to the employer and
as undermining the employee’s personal freedom.

On the negative aspect of participation may also be motivated by the possibility of

for non participation such as instance restrictions on access to locations or services
requirements to use a much more lengthy process for a routine activity for example, to
open a bank account taking insurance policies, and even the threat of legal action. Non
participation may also subject individuals to social pressure and/or prevent them from
joining some collective activities. Generally, the social and cultural factors that influence
willingness to participate in biometric systems run the gamut from trust in government
and employers, to views about privacy and physical contact, to social involvement as
against isolation.

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 In Indian context, Biometric technology looks to be the way ahead for the Indian
government in its initiatives towards identification. From the Unique Identity Scheme
(Aadhaar) to the National Population Register and now to Election ID’s. Biometric
identification seems to have become the present government’s new go-to solution for all
kinds of problems. Biometrics prove to be an obvious choice in individual identification
schemes and it is easiest technology to identify different individuals by their faces and
fingerprints, unique and integral aspects of individuals – yet, the unflinching optimism in
the use of biometric technology and the collection of biometric data on a massive scale
masks several concerns regarding compromises of individual privacy.

With the technological development, in the recent past, many newly developed
techniques are being used by the Governments throughout the world for effective and
efficacious functioning of the state. Furthermore, on combating corruption, the success of
governments in combating corruption or delivering public services efficiently relies on
positive and accurate identification of their citizens and the ability to cross-reference
databases and information across government departments and agencies. Such cross-
reference basing on the databases is only possible if a national system that allows
individuals to be uniquely identified exists. These databases typically contain data entry
mistakes as well as duplicate and dead entries causing substantial mis-targeting of
beneficiaries and pilferage in the delivery of public services. In such circumstances, the
implementation of a unique identification system could improve dramatically the
efficiency of the government as well as the open market of a given country such as credit
and insurance markets could expand as financial institutions would be more willing to
provide services and the labour market would work better as employers could verify
diplomas and certificates.

The recent advancements in recognition technology coupled with increases in

digital storage capacity and computer processing speed have made biometric technology
feasible in many identification applications. One way to establish the identity of
individuals is through their biometrics. Thus, the recent developments in biometric is a
measure of identity based on a physiological such as fingerprint, face, eye iris or retina or
behavioural identifications speech or signature characteristic etc. It is an effective

105
personal identifier because it is unique to and embodied in each person, so it cannot be
forgotten, lost or stolen like other conventional identification methods. Biometric
identification requires a device such as a camera or a scanner to capture the image,
recording, or measurements of an individual’s characteristics and computer hardware and
software to extract, encode, store, and compare these characteristics. Because the process
is automated, biometric decision making is generally very fast, in most cases taking only
a few seconds in real time. Therefore, one way to establish the identity of individuals is
through their biometrics40.

The utility of biometric identification in criminal investigation is also effective.

The criminal identification is far and away the oldest, most widespread, large scale
identification use of biometric systems to identify suspects. The technology is also used
to gain access to facilities and to replace passwords to authenticate individuals accessing
computers and networks. In addition to this criminal identification, biometric technology
has been used in developed countries to combat fraud. For example, in the United States,
leading banks and other financial institutions are piloting biometric recognition systems
to authenticate ATM users and to combat credit and debit card fraud. Hand geometry, iris
and facial recognition have been deployed at ATMs in North America, Europe, and Asia.
Even firms that offer Internet shopping are considering biometric technologies to
authorize various types of transactions. On surveillance, the use of biometrics can also be
used in monitoring the actual presence of a person, may he be a student, employee or any
beneficiary and many more situations, the attendance is required to be registered in a fool
proof method. Biometric technologies are being used in India as the basis for the national
identification system, eliminating the need for multiple identification mechanisms.
Biometrics can help determine whether applicants are already enrolled under a different
identity and thus can prevent individuals from cheating public sector benefits programs
by collecting benefits under multiple identities. Related, with more accurate data on
beneficiaries and allocation of benefits, government officials may have less room for
diverting public resources.

40
Government of India, Planning Commission, Performance Evaluation of Targeted Public
Distribution System (TPDS), 2005, New Delhi.

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 In India, the implementation of the biometrics-based Multipurpose National
Identity Card will replace all other forms of identification and enable citizens to access
public services and subsidies on food, energy and education that now suffer from major
pilferage.

However, there are also challenges in the implementation of biometric systems. A

few of such challenges overcome by various countries in implementation of biometric
identification are as follow:

Not everyone can be enrolled in a fingerprint - based identification system.

Fingerprints can be unrecognizable due to cuts or burns or extreme weight gain or loss. In
addition, older individuals may have poor fingerprints, or the operation of fingerprint
readers may be jeopardized due to arthritis. In some areas recovering from years of
conflict, individuals may lack fingers altogether. In other cases skin pigmentation
obfuscates the possibility of getting readable prints.

The accuracy of biometric technology remains to a large extent untested -

Biometric companies report very high accuracy rates from highly controlled trials which
typically use artificially generated data. However, because the performance of a
technology depends greatly on the context, trials using real life data are far less
impressive. For example, the U.K. Passport Service Trial reports that only 80 per cent of
the cases could be correctly verified, younger individuals being more successful than
older41. According to a recent review of available systems, only a handful of products
achieved an equal error rate of under 3%, and the performance of most was much
worse42.

Individuals may have a negative attitude towards providing their biometrics. At

times, people may be reluctant to place their fingers on the scanners due to hygiene
concerns. Further, there is the widespread public perception that fingerprinting is linked

41
Xavier Giné, Jessica Goldberg, U. Michigan, Shalini Sankaranarayanan, Peter Sheerin and Yang, U,
Use of biometric technology in developing countries, World Bank.
42
Galindo, Arturo and Margaret Miller 2001, Can Credit Registries Reduce Credit Constraints?
Empirical Evidence on the Role of Credit Registries in Firm Investment Decisions, IDB-IIC 42nd
Annual Meeting, Santiago, Chile.

107
to the criminal justice process. Related, in conflict affected countries stricken by ethnic
infighting, individuals may refuse to provide biometrics for fear of persecution by
authorities or others that gain illegal access to such biometric records.

The cost of collecting biometrics can be high - The estimates are sparse and
detailed cost benefits analyses have not been systematically conducted. However, the
costs of using different types of biometric technology starting from basic fingerprinting
techniques to and iris recognition software can be prohibitively expensive. In India there
are legitimate concerns that the costs of rolling out biometric technology may mean a
huge opportunity cost for the provision of social benefits for millions Indians living in
poverty. According to the World Bank revised methodology, the world had 872.3 million
people below the new poverty line, of which 179.6 million people lived in India. In other
words, India with 17.5% of total world's population had 20.6% share of worlds’ poorest
in 201143.

Biometric technology is not infallible - While biometric technology can be big

step forward to combating issues of identity theft, fraud, and money-laundering efforts, it
is essentially a technological application. As is the case with any other technology, it can
be hacked, infiltrated, or runs the risk of having data fall into the wrong hands. Since
biometric technology in only at present being piloted on a large scale in some pockets of
the world, legitimate concerns on privacy do arise.

There is apprehension that common platform is used if biometrics data is merged

with other datasets. Biometric data is stored in formats that may not be compatible with
the information systems of other government agencies so an effort must be made to have
compatibility if it has to serve as the basis for a national identification system.

The Aadhaar may raise the following privacy and security concerns. (1) Identification of
individuals without consent using the global Aadhaar number. (2) Identification and
authentication without consent using demographic and biometric data. And (3)

43
Shawn Donnan, World Bank eyes biggest global poverty line increase in decades The Financial
Times, 9 May 2014.

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Surveillance, tracking or profiling of people beyond legal sanctions using the centralised
database, either through external hacks or through insider leaks and collusion.

Thus, though the Biometric Evidence is helpful for investigating agencies, the
question of the infringement of right to privacy and right against self-incrimination
guaranteed under Indian constitution has to be addressed.

In the next chapter, the researcher has discussed Comparative Law Relating to
Right to Privacy in various countries of the world and also specific reference to Indian
context as recognized under Indian Constitution.

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 CHAPTER – IV

RIGHT TO PRIVACY : A COMPARATIVE LAW WITH

SPECIFIC REFERENCE TO INDIAN CONTEXT

In this chapter, the researcher has discussed extensively with regard to comparative legal
provisions relating to right to privacy in various countries of the world with specific
reference to Indian context as recognized under Indian Constitution and Judicial Activism
in this regard. ..

4.1. Introduction

The concept of right to privacy may be understood to be that the right to privacy is a
person’s right to keep a domain around us, which includes all those things that are part
such as our body, home, property, thoughts, feelings, secrets and identity. The right to
privacy gives human being the ability to choose which parts in this domain can be
accessed by others, and to control the extent, manner and timing of the use of those parts
one choose to disclose1. Under liberal democratic systems, privacy creates a space
separate from political life, and allows personal autonomy, while ensuring democratic
freedoms of association and expression. Privacy has long been recognised as one of the
important human rights and this is reflected in religion and history. There are, for
example, references to privacy in the Qur'an, the Bible and Jewish law.

4.2. International Instruments On Right To Privacy

There are many international human rights conventions contain provisions on

right to privacy, few of them are discussed below for understanding the concept of
privacy.

i) The Universal Declaration of Human Rights (1948) provides under Articles 12 “No
one shall be subjected to arbitrary interference with his privacy, family, home or

1
Privacy in the Digital Environment, Haifa Centre of Law & Technology, (2005) pp. 1–12

110
 correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks”.

ii) International Covenant on Civil and Political Rights (1966) provides under Article
17 (1) that “No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation (2) Everyone has the right to the protection of the law against such
interference or attacks”.

iii) Convention on the Rights of the Child (1989) provides under Article 16 (1) “No
child shall be subjected to arbitrary or unlawful interference with his or her privacy,
family, home or correspondence, nor to unlawful attacks on his or her honour and
reputation. (2) The child has the right to the protection of the law against such
interference or attacks”. Further in Article 40 (1) provides that “States Parties
recognize the right of every child alleged as, accused of, or recognized as having
infringed the penal law to be treated in a manner consistent with the promotion of
the child’s sense of dignity and worth, which reinforces the child’s respect for the
human rights and fundamental freedoms of others and which takes into account the
child’s age and the desirability of promoting the child’s reintegration and the child’s
assuming a constructive role in society.” In 2000 the convention adopted Optional
Protocol on the sale of children, child prostitution and child pornography in which
the provides that under Article 8 1. “States Parties shall adopt appropriate measures
to protect the rights and interests of child victims of the practices prohibited under
the present Protocol at all stages of the criminal justice process, in particular by: (e)
Protecting, as appropriate, the privacy and identity of child victims and taking
measures in accordance with national law to avoid the inappropriate dissemination
of information that could lead to the identification of child victims”.

iv) International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families (1990) provides under Article 12 that “No one shall
be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.”

111
v) In December 2013, the United Nations General Assembly adopted resolution
68/1672, which expressed deep concern at the negative impact that surveillance and
interception of communications may have on human rights. The General Assembly
affirmed that the rights held by people offline must also be protected online, and it
called upon all States to respect and protect the right to privacy in digital
communication. The General Assembly called on all States to review their
procedures, practices and legislation related to communications surveillance,
interception and collection of personal data and emphasized the need for States to
ensure the full and effective implementation of their obligations under international
human rights law.

4.3. Right To Privacy In The United States Of America.

The United States Constitution contains no express right to privacy in its fabric.
Although the Constitution does not explicitly include the right to privacy, the Supreme
Court has found that the Constitution implicitly grants a right to privacy against
governmental intrusion from the First Amendment, Third Amendment, Fourth
Amendment, and the Fifth Amendment. This right to privacy has been the justification
for decisions involving a wide range of civil liberties. However, the Bill of Rights reflects
the concern of James Madison3 and other framers for protecting specific aspects of
privacy, such as the privacy of beliefs as seen in 1st Amendment, privacy of the home
against demands that it be used to house soldiers (3rd Amendment), privacy of the person
and possessions as against unreasonable searches (4th Amendment), and the 5th
Amendment's privilege against self-incrimination, which provides protection for the
privacy of personal information. In addition, the Ninth Amendment states that the
"enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or
disparage other rights retained by the people." The right to privacy means the right to
personal autonomy, or the right to choose whether or not to engage in certain acts or have
certain experiences. Several amendments to the U.S. Constitution have been used in
varying degrees of success in determining a right to personal autonomy.

2
Sixty-eighth session Agenda item 69 (b), 68/167. The right to privacy in the digital age
3
James Madison was most important architect of Constitution, who was strong supporter of Bill of
Rights.

112
 It is rightly opined that the makers of the United States Constitution understood
the need to secure conditions favourable to the pursuit of happiness, and the protections
guaranteed by this are much broader in scope, and include the right to life and an
inviolate personality -- the right to be left alone -- the most comprehensive of rights and
the right most valued by civilized men. The principle underlying the Fourth and Fifth
Amendments is protection against invasions of the sanctities of a man's home and
privacies of life. Thus, although the Constitution does not explicitly provide for such
rights, the U.S. Supreme Court has interpreted the Constitution protect these rights,
specifically in the areas of marriage, procreation, abortion, private consensual
homosexual activity, and medical treatment. However, the United States Constitution
safeguards the rights of Americans to privacy and personal autonomy. State and federal
laws may limit some of these rights to privacy, as long as the restrictions meet tests that
the Supreme Court has set forth, each involving a balancing of an individual's right to
privacy against the state's compelling interests.

The privacy laws in the U.S.A. deal with several different legal concepts. One is
the invasion of privacy4, a tort based in common law allowing an aggrieved party to bring
a lawsuit against an individual who unlawfully intrudes into his or her private affairs,
discloses his or her private information, publicizes him or her in a false light, or
appropriates his or her name for personal gain. The essence of the law derives from a
right to privacy, defined broadly as "the right to be let alone”. These rights to privacy
include the Fourth Amendment5 right to be free of unwarranted search or seizure, the
First Amendment6 right to free assembly, and the Fourteenth Amendment7 due process

4
Invasion of privacy is the intrusion into the personal life of another, without just cause, which can
give the person whose privacy has been invaded a right to bring a lawsuit for damages against the
person or entity that intruded. It encompasses workplace monitoring, Internet privacy, data
collection, and other means of disseminating private information.
5
The Fourth Amendment (Amendment IV) to the United States Constitution prohibits unreasonable
searches and seizures.
6
The First Amendment (Amendment I) to the United States Constitution prevents Congress from
making any law respecting an establishment of religion, prohibiting the free exercise of religion, or
abridging the freedom of speech, the freedom of the press, the right to peaceably assemble, or to
petition for a governmental redress of grievances
7
The amendment addresses citizenship rights and equal protection of the laws and was proposed in
response to issues related to former slaves following the American Civil War.

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right, recognized by the Supreme Court as protecting a general right to privacy within
family, marriage, motherhood, procreation, and child rearing.

In the United States, the systematic starting point in discussion on the growth of
the legal concept of privacy is the famous article "The Right to Privacy," by Charles
Warren and Louis D. Brandeis requires consideration8. The right to privacy is not
mentioned in the Constitution, but the Supreme Court has said that several of the
amendments create this right. One of the various amendments, the prominent Fourth
Amendment stops the police and other government agents from searching us or our
property without "probable cause" to believe that we have committed a crime. Other
amendments protect our freedom to make certain decisions about our bodies and private
lives without interference from the government.

In the United States, the privacy laws deal with several different legal concepts.
One is the invasion of privacy, a tort based in common law allowing an aggrieved party
to bring a lawsuit against an individual who unlawfully intrudes into his or her private
affairs, discloses his or her private information, publicizes him or her in a false light, or
appropriates his or her name for personal gain. The essence of the law derives from a
right to privacy, defined broadly as "the right to be let alone." Such right usually excludes
personal matters or activities which may reasonably be of public interest, like those of
celebrities or participants in newsworthy events. Invasion of the right to privacy can be
the basis for a lawsuit for damages against the person or entity violating the right.

The constitutional amen dements in the United States on right to privacy are those
include the Fourth Amendment right to be free of unwarranted search or seizure, the First
Amendment right to free assembly, and the Fourteenth Amendment due process right,
recognized by the Supreme Court as protecting a general right to privacy within family,
marriage, motherhood, procreation, and child rearing.

8
4, Harward Law Review, 193, 1890.

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 The Castle doctrine9 analogizes a person's home to his or her castle – a site that is
private and should not be accessible without permission of the owner. The development
of tort remedies by the common law is "one of the most significant chapters in the history
of privacy law". These rights expanded to include recognition of man's spiritual nature,
of his feelings and his intellect. Eventually, the scope of those rights broadened even
further to include a basic "right to be let alone," and the former definition of "property"
would then comprise "every form of possession – intangible, as well as tangible." By the
late 19th century, interest in privacy grew as a result of the growth of print media,
especially newspapers10.

The contemporary United States law on right to privacy provide that "invasion of
privacy" is a commonly used cause of action in legal pleadings. Modern tort law includes
four categories of invasion of privacy, namely (1) Intrusion of solitude: physical or
electronic intrusion into one's private quarters, (2) Public disclosure of private facts: the
dissemination of truthful private information which a reasonable person would find
objectionable, (3) False light: the publication of facts which place a person in a false
light, even though the facts themselves may not be defamatory and (4) Appropriation: the
unauthorized use of a person's name or likeness to obtain some benefits11. The important
provisions relating to the right of privacy in the United States may be summed up as
follows:

1. Amendment I - Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.

9
Castle Doctrine is an exception to a rule in place in some jurisdictions that requires a defendant to
retreat before using deadly force in self-defense. The castle exception states that if a defendant is in
his home, he is not required to retreat prior to using deadly force in self defense.
10
Solove, Daniel J., Marc Rotenberg, and Paul M. Schwartz (2006), Privacy, Information, and
Technology, Aspen Publishers, pp. 9–11
11
William Prosser, Privacy, California Law Review, 1960, Vol. 48, No. 3, pp. 383–423, Retrieved 31-
12-2017.

115
2. Amendment III - No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.

3. Amendment IV - The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.

4. Amendment IX - The enumeration in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the people.

5. The Liberty Clause of the Fourteenth Amendment provides that no State shall...
deprive any person of life, liberty, or property, without due process of law.

While concluding the right to privacy in the United States, the following far-
reaching judgments require consideration. In Griswold v. Connecticut12 a Connecticut
law prohibiting use of contraceptives in any form was contested as violative of the 14th
Amendment i.e., that "no state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law...nor deny any person the
equal protection of the laws." In Roe v. Wade13A pregnant single woman (Roe) brought a
class action challenging the constitutionality of the Texas criminal abortion laws, which
proscribe procuring or attempting an abortion except on medical advice for the purpose
of saving the mother's life. The Supreme Court upheld a woman's choice to have an
abortion, as it was a private decision between her and her doctor. However, in Olmstead
14
v. United States, a case of wire-tapping or electronic surveillance without actual
physical invasion. Only the minority dissent of Justice Brandeis, stated that the
amendment protected the right to privacy which meant "the right to be let alone", and its
purpose was "to secure conditions favourable to the pursuit of happiness", while

12
Griswold v. Connecticut, 381 U.S. 479 (1965)
13
Roe v. Wade, 410 U.S. 113 (1973)
14
Olmstead v. United States, 277 U.S. 438 (1928)

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recognizing "the significance of man's spiritual nature, of his feelings and intellect: the
right sought "to protect Americans in their beliefs, their thoughts, their emotions and their
sensations”. It is opined that this minority judgment became law in future decisions. In
Katz v. United States,15 Charles Katz used a public pay phone booth to transmit illegal
gambling wagers from Las Angles to Miami and Boston. The Federal Bureau of
Investigations (FBI) recorded his conversations using an electronic eavesdropping device
attached to the outside of the phone booth and Katz was convicted based on these
recordings. He challenged his conviction, arguing that the recordings were obtained in
violation of his 4th Amendment rights. SC ruled that amendment's protections apply only
when the searched party has a "reasonable expectation of privacy" andn in this instance
Katz would have had such expectation. This case made wiretapping by state and federal
authorities subject to the Fourth Amendment's warrant requirements.

4.4. Right to Privacy in the United Kingdom

On the the evolution of a right to privacy parallels the development of the

humanist tradition. A right of privacy is predicated on the belief that each human being
has intrinsic value, that is, is valuable in and of him or herself. There is no right to
privacy in United Kingdom law even after the Human Rights Act 1998, and Parliament
has shown a lack of enthusiasm for creating such a right. Even though there is no specific
and stated right to right to privacy in the law, however, the right to privacy can be
protected in two ways, firstly, the right to confidence and secondly, through Article 8 of
the European Convention on Human Rights. It was the case of Prince Albert v. Strange 16
provides a good illustration of how the right to confidence protects privacy. In this case,
court decision made by the High Court of Chancery in 1849, and began the development
of confidence law in England. The court awarded Prince Albert an injunction, restraining
Strange from publishing a catalogue describing Prince Albert's etchings. The defendant in
this famous case, who was a publisher was in possession of copies of private etchings of
the Royal Family at home. The publisher had attained them from an employee of a printer
to whom Prince Albert had entrusted the plates. While the right to privacy was not

15
Katz v. United States, 389 U.S. 347 (1967)
16
Prince Albert v Strange (1849) 47 ER 1302

117
explicitly recognised at the time, it was argued on behalf of Queen Victoria and Prince
Albert that they had a right to keep private, art works that they had commissioned, for
their personal enjoyment. Ruling in favour of Queen Victoria and Prince Albert, the court
held that:

“Every man has a right to keep his own sentiments, if he pleases. He has certainly
a right to judge whether he will make them public or commit them only to the sight of his
friends.”

The court further held that the publication of these etchings invaded the Royal
Family's right to privacy, in the sense of a right to control one's possessions and enjoy
them.

However, the judiciary has developed the doctrine of breach of confidence in a

way that provides a limited right to privacy, particularly since the Human Rights Act
1998. Although Article 8 of the European Convention on Human Rights creates a right to
respect for private life, this is not a right to privacy. Also Article 8 must be balanced with
Article 10 which guarantees freedom of expression, which is significant when the press is
alleged to have breached an individual's right to privacy.

Respect for this belief becomes the fundamental source of all human rights. The
right of privacy in England is though not legally enforceable at common law, but have
been acknowledged by the English courts. Lord Denning in one case said, “While
freedom of expression is a fundamental human right, so also is the right of privacy."
Schering Chemicals v. Falkman17, Lord Scarman, in another case said the right to
privacy is fundamental, Morris v Beardmore18. Lord Keith in one of the case said, “the
right to personal privacy is clearly one which the law of confidence should … seek to
protect" A.G. v. Guardian Newspapers Ltd19. In one of the landmark case of Entick v.
Carrington20, Entick, the petitioner won his case and accordingly awarded damages as
the king’s officers failed to establish any legal authority for the trespass in to his house.

17
Schering Chemicals v. Falkman, . [1982] QB 1
18
Morris v Beardmore, [1981] AC 446, 464
19
A.G. v. Guardian Newspapers Ltd, [1990] 1 AC 109, 255
20
Entick v Carrington, (1765) 19 St Tr 1029

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As per the Jewish law due regards exist to privacy with respect to the issue of private
property, the 8th commandment states, "You shall not steal." This means respecting
property rights means to respect privacy rights.

The Human Rights Act (HRA), 1998 has came into force in England and Wales
on 2nd October 2000. The Human Rights Act is the Act of Parliament that has brought
the European Convention on Human Rights (‘the Convention’) into UK law. After
passing of the Human Rights Act, it allows people to enforce their rights given by the
Convention in the United Kingdom courts. The Human Rights Act (HRA) also provide
that public authorities including government departments, the police, local authorities,
courts, schools, hospitals, GP surgeries, prisons and public libraries. and the Benefits
Agency must pay respect to the people’s Convention rights.

In the United Kingdom, privacy law is a rapidly developing area of the domestic
law that considers in what situations an individual has a legal right to informational
privacy, the protection of personal or private information from misuse or unauthorised
disclosure. The right to privacy refer to the general right to be left alone, a desire to be
allowed to enjoy a particular space, either alone or with others, which the state or others
should not be allowed to penetrate. Privacy law is distinct from those laws such as
trespass or assault that are designed to protect physical privacy. Such laws are generally
considered as part of criminal law or the law of tort. The earliest definition of privacy in
English law was given by Thomas M. Cooley who defined privacy as "the right to be left
alone. In recent years in the United Kingdom, the law on privacy has developed from the
time of the traditional breach of confidence cases such as Coco v Clark21 and Attorney-
General and Observer Ltd. v. Times Newspapers Ltd.22 to the Human Right era with cases
such as Von Hannover v Germany23, Campbell v Mirror Group Plc24, PG and J.H. v.
United Kingdom25 These developments have lead to the acknowledgement of a legitimate
expectation of protection and respect for private life. Privacy laws in the Untied Kingdom

21
Coco v. A.N. Clark (Engineers) Ltd (1969)
22
Attorney-General v. Guardian Newspapers Ltd QBD (1988) 2 WLR 805)
23
von Hannover v. Germany. Reference [2004] EMLR 379; (2005) 40 EHRR 1.
24
Campbell v MGN Ltd (HL). Reference [2004] UKHL 22; [2004] 2 AC 457; [2004]
25
P.G. and J.H. v. The United Kingdom (44787/98) [2001] ECHR 546 (25 September 2001)

119
seek to create a balance between the need to collect personal information and an
individual's right to maintain their personal privacy.

In the United Kingdom, the definitions of privacy varied widely in accordance

with the context and environment. The Calcutt Committee26, in the United Kingdom
provided a satisfactory statutory definition of privacy as, “the right of the individual to be
protected against intrusion into his personal life or affairs, or those of his family, by
direct physical means or by publication of information." In nutshell, the privacy could be
defined as:

1. The right to be left alone27;

2. Freedom from interruption, intrusion, embarrassment or accountability28,

3. control of the disclosure of personal information29,

4. A protection of the individual's independence, dignity and integrity30,

5. Secrecy, anonymity and solitude31,

6. the right to protection from intrusion into your personal life32.

4.5. Right to privacy In Australia

In Australia, right to privacy is not an absolute right and there is no clearly

recognised tort of invasion of privacy or similar remedy available to people who feel their
right to privacy has been violated. Privacy is, however, affected and protected in limited
ways by the Australian common law and a range of Commonwealth, state and territorial
laws, and administrative arrangements. On right to privacy in Australian law, common
law, the major obstacle to the recognition in Australia of a right to privacy was, before

26
Report of the Committee on Privacy and Related Matters, Chairman David Calcutt QC, 1990,
Cmnd. 1102, London:
27
Warren & Brandeis (1890, p. 205) (Britz, 1999; Velasquez, 1998)
28
thepublicvoice.org/issues_and_resources/privacy_01.html, Retrieved on 31-12-2017
29
Elgesem, 2001; Fleming, 2003; Tavani & Moor, 200
30
.http://plato.stanford.edu/entries/privacy/, Retrieved on 31-7-2017.
31
http://www.springerlink.com/content/jrp61378317v2571/, Retrieved on 31-7-2017.
32
http://www.routledgelaw.com/textbooks/9780415458467/downloads/sample.pdf, Retrieved on 31-7-
2017

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2001, the 1937 High Court decision in Victoria Park Racing and Recreation Grounds Co
Ltd v Taylor (Victoria Park)33. In a subsequent decision, the High Court in Lenah Game
Meats indicated clearly that the decision in Victoria Park 'does not stand in the path of the
development of … a cause of action for invasion of privacy. Thus, prior to 2001, the
major obstacle to the recognition in Australia of a common law right to privacy was the
1937 High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v.
Taylor34. In a subsequent decision, the High Court in Lenah Game Meats indicated
clearly that the decision in Victoria Park ‘does not stand in the path of the development of
… a cause of action for invasion of privacy’35. The elements of such a cause of action and
also whether the cause of action is to be left to the common law tradition of incremental
development or provided for in legislation remain open questions today36.

Subsequent to this, two cases have recognised expressly a common law right of
action for invasion of privacy. In the 2003 Queensland District Court decision in Grosse
v. Purvis37, the Judge has awarded aggravated compensatory damages and exemplary
damages to the plaintiff for the defendant’s breach of the plaintiff’s privacy. After noting
that the High Court in Lenah Game Meats had removed the barrier the Victoria Park case
posed to any party attempting to rely o a tort of invasion of privacy, his Honour took
what he viewed as ‘a logical and desirable step’ and recognised ‘a civil action for
damages based on the actionable right of an individual person to privacy’38.

The handling of personal information in Australia is governed by legislation at

both a federal and state/territory level. At a federal level, the Privacy Act 1988 governs
the way in which business entities and federal government agencies must handle personal
information, largely through the 13 Australian Privacy Principles set out within the
Privacy Act. The Australian Privacy Act 1988 is an Act with the objects of this Act are:

33
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
34
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.
35
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
36
G Taylor and D Wright, ‘Australian Broadcasting Corporation v Lenah Game Meats: Privacy,
Injunctions and Possums: An Analysis of the Court’s Decision’ (2002) 26 Melbourne University
Law Review 707, 709.
37
Grosse v. Purvis (2003) Aust Torts Reports 81–706.
38
Murray v. Big Pictures (UK) Ltd [2008] EWCA Civ 446

121
(a) to promote the protection of the privacy of individuals; and

(b) to recognise that the protection of the privacy of individuals is balanced with the
interests of entities in carrying out their functions or activities; and

(c) to provide the basis for nationally consistent regulation of privacy and the handling
of personal information; and

(d) to promote responsible and transparent handling of personal information by entities;

and

(e) to facilitate an efficient credit reporting system while ensuring that the privacy of
individuals is respected; and

(f) to facilitate the free flow of information across national borders while ensuring that
the privacy of individuals is respected; and

(g) to provide a means for individuals to complain about an alleged interference with
their privacy; and

(h) to implement Australia’s international obligation in relation to privacy.

The Privacy Act 1988 (Privacy Act) is an Australian law which regulates the
handling of personal information about individuals. Personal information is information
or an opinion about an identified individual, or an individual who is reasonably
identifiable. The Privacy Act includes thirteen Australian Privacy Principles (APPs). The
APPs set out standards, rights and obligations for the handling, holding, use, accessing
and correction of personal information including sensitive information. The Federal
Government has recently made changes to the Privacy Act 1988 (Cth). These changes
include new Australian Privacy Principles (APPs). The changes, including the new
principles, commenced on 12 March 2014.

‘Personal information’ is defined by the Privacy Act as information or an opinion

about an identified individual, or an individual who is reasonably identifiable, whether
the information or opinion is true or not and whether the information or opinion is

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recorded in a material form or not. State and territory government agencies must comply
with the relevant state or territory based privacy legislation.

4.6. Right to Privacy In Canada

The Canadian privacy law is derived from the common law, statutes of the
Parliament of Canada and the various provincial legislatures, and the Canadian Charter of
Rights and Freedoms. The Canadian Charter of Rights and Freedoms forms the first part
of the Constitution Act, 1982. Here are some protections that the Charter guarantees:

1. freedom of religion, of thought, of expression, of the press and of peaceful

assembly

2. the right to participate in political activities and the right to a democratic

government

3. the freedom to move around and live within Canada, and to leave Canada

4. legal rights such as the right to life, liberty and security

5. equality rights

6. language rights

The Canadian Charter of Rights and Freedoms (Charter) was enacted in 1984 and
it effectively replaced the Bill of Rights of 1960. The Canadian Charter of Rights and
Freedoms does not specifically mention privacy or the protection of personal information.
However, it does afford protection under Section 7 (the right to life, liberty and the
security of the person), and Section 8 (the right to be secure against unreasonable search
or seizure).

The Supreme Court of Canada has stated that the Privacy Act has “quasi-
constitutional status”, and that the values and rights set out in the Act are closely linked
to those set out in the Constitution as being necessary to a free and democratic society.
The purpose of Canadian Privacy Act, 1986 is to extend the present laws of Canada that
protect the privacy of individuals with respect to personal information about themselves

123
held by a government institution and that provide individuals with a right of access to that
information.

Canadian privacy law has evolved over time into what it is today. The first
instance of a formal law came when, in 1977, the Canadian government introduced data
protection provisions into the Canadian Human Rights Act. In 1982, the Canadian
Charter of Rights and Freedoms outlined that everyone has "the right to life, liberty and
security of the person" and "the right to be free from unreasonable search or seizure", but
did not directly mention the concept of privacy. In 1983, the federal Privacy Act
regulated how federal government collects, uses and discloses personal information.
There are a number of laws in Canada that relate to privacy rights, and there are various
government organizations and agencies responsible for overseeing compliance with these
laws.

Privacy protection laws in Canada focus mainly on safeguarding personal

information. Drawing upon generally accepted fair information practices, federal data
protection laws – namely, the Privacy Act and the Personal Information Protection and
Electronic Documents Act (PIPEDA) – seek to allow individuals to decide for
themselves, to the greatest extent possible, with whom they will share their personal
information, for what purposes and under what circumstances. The Office of the Privacy
Commissioner of Canada (OPC) oversees compliance with two federal privacy laws: (1)
The Privacy Act39, which covers the personal information-handling practices of federal
government departments and agencies and (2) The Personal Information Protection and
Electronic Documents Act (PIPEDA), which covers the personal information-handling
practices of many businesses.

The Privacy Act is the law that governs the personal information handling
practices of federal government institutions. The Act applies to all of the personal
information the federal government collects, uses and discloses—be it about individuals
or federal employees. The Act also gives individuals the right to access and request
correction of personal information held by these federal government institutions.

39
Privacy Act, R.S.C., 1985, c. P-21

124
 In respect of the Organizations covered by the Personal Information Protection
and Electronic Documents Act (PIPEDA) must obtain an individual's consent when they
collect, use or disclose that individual's personal information. People have the right to
access their personal information held by an organization. They also have the right to
challenge its accuracy. Personal information can only be used for the purposes for which
it was collected. If an organization is going to use it for another purpose, they must obtain
consent again. Individuals should also be assured that their information will be protected
by appropriate safeguards. Under PIPEDA, personal information includes any factual or
subjective information, recorded or not, about an identifiable individual. This includes
information in any form, such as:

1. Age, name, ID numbers, income, ethnic origin, or blood type;

2. Opinions, evaluations, comments, social status, or disciplinary actions; and

3. Employee files, credit records, loan records, medical records, existence of a

dispute between a consumer and a merchant, intentions such as to acquire goods
or services, or change jobs.

4.7. Right To privacy In Russia

The Russian Constitution under Article 23 (1) provide that everyone shall have
the right to the inviolability of his (her) private life, personal and family privacy, and
protection of his (her) honor and good name and (2) that everyone shall have the right to
privacy of correspondence, of telephone conversations and of postal, telegraph and other
communications. This right may be limited only on the basis of a court order. Article 25
guarantee that the home shall be inviolable. Nobody shall have the right to enter a
dwelling place against the will of those residing therein, except in those cases provided
for by federal laws or on the basis of a court order.

The new privacy protection law has came into operation with effect from October
1, 2013, amendments to Russia’s Civil Code aimed at protecting the privacy of

125
individuals entered into force40. Based on these amendments, the courts will be better
able to defend the private lives of individuals against unwanted intrusions and will have
the authority to order the complete deletion of information which, if released, would be
too personal for the complainant and might insult, abuse, or offend that person.

4.8. Right To Privacy In Pakistan

A specific statute on right to privacy in Pakistan have not properly defined in the
relevant law on the right to privacy, therefore, it is only the Constitution that has asserted
importance of right to privacy by declaring a universal guarantee for the same, and has
coupled it with the concept of human dignity. Right to privacy in Pakistan, one must refer
to Article 14 of its Constitution, which mandates that the dignity of man and (subject to
law) the privacy of the home, shall be inviolable.

In Pakistan the Courts did not have any statutory guidance as to the scope for a
right to privacy and its varieties, therefore, Pakistan's Courts have attempted to define and
explain such scope by relying on the Islamic Shariah law. The select international
standards, Pakistan has committed to, impress upon providing minimal assurances as to
the protection of bodily privacy, territorial privacy, and privacy of communications.
Pakistan’s Courts have not been able to lay down any scope for the right of one’s
information privacy which involves the establishment of rules governing the collection
and handling of personal data such as credit information and medical record.

Privacy is important for political reasons, because people need to be free to think,
and argue, and act. Because unwarranted surveillance, it chills citizens’ behaviour and
speech, and undermines democracy. That privacy is important for economic reasons,
because people need to be free to innovate. Privacy is important for philosophical
reasons, because people are regarded as being very important for their own sake. In the
contemporary times, because the concepts of 'human dignity', personal integrity,
individual autonomy, self determination play a significant role in shaping national pride
in some countries.

40
The Federal Law of the Russian Federation, No. 142 FZ of July 2, 2013, on Amending Section 3 of
Chapter 1, Part 1, of the Civil Code of the Russian Federation.

126
 To discuss on the scope for a right to privacy, in general legal discussions, this
right has been described to include the following varieties, firstly Information privacy
(which involves the establishment of rules governing the collection and handling of
personal data such as credit information and medical records) and secondly. Bodily
privacy (which concerns the protection of people's physical selves against invasive
procedures such as drug testing and cavity searches); thirdly Privacy of communications
(which covers the security and privacy of mail, telephones, email and other forms of
communication); and the forth one Territorial privacy (which concerns the setting of
limits on intrusion into the domestic and other environments such as the workplace or
public space).

The right to privacy in Pakistan is embodied under Article 14 of its Constitution,

which mandates that “the dignity of man and, subject to law, the privacy of home, shall
be inviolable”. The statute books in Pakistan have not properly defined the right to
privacy, and it is only the Constitution that (instead of defining) this concept has asserted
its importance by declaring a universal guarantee for the right to privacy, and has coupled
it with the concept of 'human dignity'41.

According to the Author in the forgoing Article, Faisal Daudpota, this right has
been described to include the following varieties: (1). Information privacy (which
involves the establishment of rules governing the collection and handling of personal data
such as credit information and medical records); (2). Bodily privacy (which concerns the
protection of people's physical selves against invasive procedures such as drug testing
and cavity searches); (3) Privacy of communications (which covers the security and
privacy of mail, telephones, email and other forms of communication); and (4) Territorial
privacy (which concerns the setting of limits on intrusion into the domestic and other
environments such as the workplace or public space). As a fundamental constitutional
right, the right to privacy is meant to take precedence over any other inconsistent

41
Faisal Daudpota, Fundamental Scope Of The Right To Privacy In Pakistan – Need For A New Data
Protection, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2866416. Retrieved on 15-7-2917

127
provisions of domestic law as upheld by Article 8 of the Constitution.42 Pakistan has
ratified the International Covenant on Civil and Political Rights (ICCPR)5 and the
Convention on the Rights of the Child (ratified November 1990)6 , which both uphold
the right to privacy. Furthermore, Pakistan has signed Cairo Declaration on Human
Rights In Islam (signed August 1990) which also upholds the right to privacy. Despite
being a signatory to international treaties recognising the right to privacy as a
fundamental human right and the Constitution of Pakistan also reaffirming the
inviolability of this right, the country’s operational legal framework does little to
protect a citizen’s right to privacy43.

Pakistan’s Courts did not have any statutory guidance as to the scope for a right to
privacy and its varieties, so they have attempted to explain the aforesaid scope Pakistani
courts have relied on the Islamic Shariah law, and have attempted to define and lay down
the scope of the right to privacy in the following terms:

a) That eavesdropping, tapping stealthily, photographing something inside the

house are invasions on privacy;

b) That the right to privacy is the very basis of decent living;

c) That the right to privacy includes privacy of one’s home, and that such right is
inviolable;

d) That the concept of purdah vii is an inherent concept of privacy of home;

e) That the right to privacy is violated through arbitrary and unlawful intrusion, by
the police, into one’s home;

f) That under the Islamic Shariah law (which is also afforded full faith and credit by
Pakistan’s Courts), the right to privacy is one of those rights that the creator
Himself has bestowed upon human beings, and that such right means that:

42
Privacy International (2015), Tipping the Scales: surveillance and security in Pakistan. Available:
https://www.privacyinternational.org/sites/default/files/PAKISTAN%20REPORT%20HIGH%20RE
S%2020150721_0.pdf, retrieved on 31-7-2017
43
Ismail Sheikh, Little legal protection for privacy in Pakistan, The Tribune, November 14, 2014

128
(i) one should not enter another’s house until permission is given to enter,

(ii) one should not spy on others,

(iii) one should not look into another’s house even when there are no curtains on the
house door, and

(iv) one should not read another’s private correspondence.

4.9. Right To Privacy In Bangladesh

In Bangladesh, the ‘concept of equality’ as enshrined in Article 27 of the

Constitution of Bangladesh prohibits the state from denying equality before the law or the
equal protection of the laws to any person on the ground of caste, creed, faith, race,
religion, birth and place. The effective derivative source of the doctrine in the criminal
justice is Article 31 of the Constitution of Bangladesh which provides that: “To enjoy the
protection of the law, and to be treated in accordance with law, and only in accordance
with law, is the inalienable right of every citizen, wherever he may be, and of every other
person for the time being within Bangladesh, and in particular no action detrimental to
the life, liberty, body, reputation or property of any person shall be taken except in
accordance with law.” In a criminal trial, there are two parties: the state and the
individual. To enjoy the protection of the law, and to be treated in accordance with law,
and only in accordance with law, is the inalienable right of every citizen, wherever he
may be, and of every other person for the time being within Bangladesh, and in particular
no action detrimental to the life, liberty, body, reputation or property of any person shall
be taken except in accordance with law.

Protection against self-incrimination is available under Bangladesh Constitution.

Clause (4) of Article 35 provides that “No person accused of any offence shall be
compelled to be a witness against himself.” In other words, this Article prohibits all kinds
of compulsions to make a person accused of an offence a witness against himself.

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4.10. Right To Privacy In India

In most of the common law constitutions, right to privacy is not given expressly
to their citizens, but derived from judicial review and court decisions. The term "privacy"
has been described as "the rightful claim of the individual to determine the extent to
which he wishes to share of himself with others and his control over the time, place and
circumstances to communicate with others. It means his right to withdraw or to
participate as he sees fit. It also means the individual's right to control dissemination of
information about himself; it is his own personal possession"

The right to privacy is protected as an intrinsic part of the right to life and
personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of
the Constitution. The right to privacy is the right to be let alone, in the absence of some
"reasonable" public interest in a person's activities, like those of celebrities or participants
in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for
damages against the person or entity violating the right.

A definite legal definition of ‘privacy’ is not available. Some legal experts tend to
define privacy as a human right enjoyed by every human being by virtue of his or her
existence. It depends on no instrument or charter. Privacy can also extend to other
aspects, including bodily integrity, personal autonomy, informational self-determination,
protection from state surveillance, dignity, confidentiality, compelled speech and freedom
to dissent or move or think. In short, the right to privacy has to be determined on a case-
by-case basis.

Personal Liberty' in Article 21 of Indian Constitution covers a variety of rights

and some have status of fundamental rights and given additional protection under Article
19. Triple Test for any law interfering with personal liberty: (i) it must prescribe a
procedure; (ii) the procedure must withstand the test of one or more of the fundamental
rights conferred under Article 19 which may be applicable in a given situation; and (iii) it
must withstand test of Article 14. The law and procedure authorizing interference with
personal liberty and right of privacy must also be right and just and fair and not arbitrary,

130
fanciful or oppressive44. Another recent judgment is landmark Decision on consensual
Homosexuality wherein the provisions of Section 377 of Indian Penal Code and Articles
14, 19 & 21 of Indian Constitution were examined. It was held that right to privacy held
to protect a "private space in which man may become and remain himself". Individuals
need a place of sanctuary where they can be free from societal control – where
individuals can drop the mask, desist for a while from projecting on the world the image
they want to be accepted as themselves, an image that may reflect the values of their
peers rather than the realities of their natures45.

Right to privacy in India can specifically be found under Article 21 which

expressly declare that “No person shall be deprived of his life or personal liberty except
according to procedure established by law.” The other relevant Provisions:

1. The Information Technology Act, 2000 (as amended): S.43; 43A; S.66E; S.72A;

2. The Indian Penal Code, 1860;

3. The Criminal Procedure Code, 1973 and

4. Other Special enactments including Income Tax Act etc.

In a milestone ruling, India's Supreme Court declared that privacy is a

fundamental right for each of its 1.3 billion citizens protected under the country's
constitution. On 24th August, 2017, the Supreme Court of India has pronounced a far-
reaching judgment on right to privacy in Justice K.S. Puttaswamy (Retd.), and anr. v.
Union of India and others46. The nine-judge Constitution bench's decision will impact
everyday lives of Indians. It will define the relationship between government and the
citizen and will shape the fundamental rights are understood for decades to come. The
precedents being eight-judge bench ruled in the M.P. Sharma47 case that there was no
right to privacy under a specific Article, but it did not extinguish a general fundamental

44
Maneka Gandhi v. Union Of India on 25 January, 1978, 1978 AIR 597, 1978 SCR (2) 621
45
Naz Foundation v. Government Of National Capital Delhi And Others, WP(C) No. 7455/2001
46
K.S. Puttaswamy (Retd.), and anr. v. Union of India and others, Writ Petition (Civil) No 494 OF
2012
47
M.P. Sharma v. Satish, AIR 1954 SC 300

131
right to privacy. A six-judge bench in Kharak Singh case48 that right to privacy is not
fundamental, no longer good law.

In an unbroken chain of judgments, starting from Gobind v. State of Madhya

Pradesh49 and leading up to National Legal Services Authority (NALSA) v. Union of India
which is on the rights of transgender persons, the Supreme Court has recognised the
fundamental right to privacy. The Court opined that Privacy is associated with and is the
bulwark of other rights. It is located in the golden trinity of Articles 14, 19, and 21 (right
to liberty and equality).Thus, there can be no dignity without privacy, and dignity is part
of the Preamble, part of the basic structure of the Constitution.

4.10.1.Hon’ble Supreme Court On Right to Privacy

The Supreme Court has reiterated the Right to Privacy in the following cases:

Kharak Singh v. State of UP50

This case pertains to domiciliary visits by the police during night. Apex Court
held that the Regulation 236 is unconstitutional and violative of Article 21. It concluded
that the Article 21 of the Constitution includes “right to privacy” as a part of the right to “
protection of life and personal liberty”. The Court equated ‘personal liberty’ with
‘privacy’, and observed, that “the concept of liberty in Article 21 was comprehensive
enough to include privacy and that a person’s house, where he lives with his family is his
‘castle’ and that nothing is more deleterious to a man’s physical happiness and health than
a calculated interference with his privacy”.

Gobind v. State of M.P51

It is another case on domiciliary visits. Hon’ble Supreme Court laid down that
“…privacy-dignity claims deserve to be examined with care and to be denied only when
an important countervailing interest is shown to be superior. If the Court does find that a

48
Kharak Singh vs The State Of U. P. & Others, 1963 AIR 1295, 1964 SCR (1) 332
49
Gobind v. State Of Madhya Pradesh And Anr. , AIR 1975 SC 1378, 1975 CriLJ 1111, (1975) 2 SCC
148, 1975 3 SCR 946
50
AIR 1963 SC 1295:
51
(1975) 2 SCC 148

132
claimed right is entitled to protection as a fundamental privacy right, a law infringing it
must satisfy the compelling State interest tests…”

State v. Charulata Joshi,52

Hon’ble Apex Court held that “the constitutional right to freedom of speech and
expression conferred by Article 19(1)(a) of the Constitution which includes the freedom
of the press is not an absolute right. The press must first obtain the willingness of the
person sought to be interviewed and no court can pass any order if the person to be
interviewed expresses his unwillingness”.

R. Rajagopal v. State of Tamil Nadu53

The Hon’ble Supreme Court held that the petitioners have a right to publish what
they allege to be the life-story/autobiography of Auto Shankar insofar as it appears from
the public records, even without his consent or Authorization. But if they go beyond that
and publish his life story, they may be invading his right to privacy, then they will be
liable for the consequences in accordance with law. Similarly, the State or its officials
cannot prevent or restraint the said publication. It Stated that “A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood, child
bearing and education among other matters. None can publish anything concerning the
above matters without his consent- whether truthful or otherwise and whether laudatory
or critical. If he does so, he would be violating the right to privacy of the person
concerned and would be liable in an action for damages…….”

People’s Union for Civil Liberties (PUCL) v. Union of India,54

The Hon’ble Supreme Court held that the telephone tapping by Government
under S. 5(2) of Telegraph Act, 1885 amounts infraction of Article 21 of the Constitution
of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined
under Article 21 of the Constitution. The said right cannot be curtailed “except according

52
(1999) 4 SCC 65
53
AIR 1995 SC 264
54
(1997) 1 SCC 301

133
to procedure established by law”.

In Mr. ‘X’ v. Hospital ‘Z’,(1998) 8 SCC 296)

For the first time Hon’ble Supreme Court articulated on sensitive data related to
health. In this case, the appellant’s blood test was conducted at the respondent’s hospital
and he was found to be HIV (+). His marriage, which was already settled, was called off
after this revelation. Several persons including the members of his family and those
belonging to their community came to know of his HIV (+) status and was ostracized by
the community. He moved the Hon’ble Supreme Court by way of an appeal against
decision of National Commission and argued that doctor-patient relationship, though
basically commercial, is professionally, a matter of confidence and, therefore, doctors are
morally and ethically bound to maintain confidentiality.” It however, held that although it
was the basic principle of jurisprudence that ‘every Right has a correlative Duty and
every Duty has a correlative Right’, the rule was not absolute and was ‘subject to certain
exceptions’ in the sense that ‘a person may have a Right, but there may not be correlative
Duty, and the instant case fell within exceptions. The court observed that even the Code
of Medical Ethics carved out an exception to the rule of confidentiality and permitted the
disclosure in certain circumstances ‘under which public interest would override the duty
of confidentiality’ particularly where there is ‘an immediate or future health risk to
others’. According to the court, the ‘right to confidentiality, if any, vested in the appellant
was not enforceable in the present situation, as the proposed marriage carried with it the
health risk from being infected with the communicable disease from which the appellant
suffered. The Hon’ble Supreme Court observed that as one of the basic human rights, the
right of privacy was not treated as absolute and was ‘subject to such action as may be
lawfully taken for the prevention of crime or disorder or protection of health or morals or
protection of rights and freedom of others.”

District Registrar and Collector v. Canara Bank,(2005) 1 SCC 496

It was held, that “exclusion of illegitimate intrusions into privacy depends on the
nature of the right being asserted and the way in which it is brought into play; it is at this
point that the context becomes crucial, to inform substantive judgment. If these factors

134
are relevant for defining the right to privacy, they are quite relevant whenever there is
invasion of that right by way of searches and seizures at the instance of the State.”

If one follows the judgments given by the Hon’ble Supreme Court, three themes emerge:

1. that the individual’s right to privacy exists and any unlawful invasion of privacy
would make the ‘offender’ liable for the consequences in accordance with law;

2. that there is constitutional recognition given to the right of privacy which protects
personal privacy against unlawful governmental invasion;

3. that the person’s “right to be let alone” is not an absolute right and may be
lawfully restricted for the prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others;

Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621

Wherein this right is recognized, subject to legal restrictions satisfying the

requirements as laid down in the Maneka Gandhi case. However, if the courts were to
address the issue of right to privacy under Article 21 afresh, there is little doubt that it
would conclude that there does exist a right to privacy. On a harmonious interpretation of
the legal principles as laid down by the Supreme Court at different points of time, it is
sufficient to conclude the existence of right to privacy under Part III of the Constitution.
Privacy is also a feature of the dignity of an individual that the preamble to the
Constitution assures every individual. Thus the right is not merely a negative mandate
upon the state not to encroach upon the private space of the individual but is also a
positive affirmation on the state to create adequate institutions that would enable one to
effectively protect his private life.

It was K.S. Puttaswamy, Former Karnataka HC judge, filed the Public interest
litigation (PIL) in 2012 challenging the Aadhaar scheme, saying it violates fundamental
rights to privacy and equality. Supreme Court has linked all the 20 plus Aadhaar cases to
this main case. Petitioners include activists Bezwada Wilson, Aruna Roy and Nikhil Dey.

135
 In a sign of the digital times we live in, India's Supreme Court found itself
deliberating a fittingly new-age question that arises is as to whether privacy a
fundamental legal right for 1.34 billion people. The answer invariably shall be yes. A rare
nine-member bench of the Supreme Court issued a historic ruling with potentially
widespread consequences, decreeing that a right to privacy is part of the fundamental
rights to life and liberty enshrined in the country's constitution. The heated and politicized
court case -- which pitted rights activists against the government of India -- could have
implications for the country's biometric identification program known as Aadhaar. On
one side, the petitioners said the fingerprints and retinal scans collected under Aadhaar
violated an individual's right to privacy. Lawyers representing the government countered
that India's constitution did not recognize a fundamental right to privacy. The court's
ruling is a rebuke of the government's stance. Rights activists were quick to rejoice. "This
is not just a legal victory. It is a moral victory,"

The Supreme Court of India overruled its two earlier verdicts and passed a
judgment that Right to Privacy is a fundamental right and is protected under the
Constitution. The landmark verdict was passed unanimously by a nine-judge Constitution
bench which held that privacy was intrinsic to freedom of life and personal liberty which
is guaranteed under Article 21 of the Constitution. A nine-judge Constitution Bench
headed by Chief Justice of India J.S. Khehar and comprising Justices J. Chelameswar,
S.A. Bobde, R K Agrawal, R.F. Nariman, A M. Sapre, D.Y. Chandrachud, S K Kaul and
S. Abdul Nazeer gave the verdict. The apex court has in the past ruled against right to
privacy being a fundamental right. The two earlier judgments over-ruled were M P
Sharma & Others v. Satish Chandra, District Magistrate, Delhi & Others55 and Kharak
Singh v. The State of Uttar Pradesh. & Others56 In the Aadhar case above, he marathon
Supreme Court hearings on the right to privacy saw debates and discussions on the
"amorphous" right to privacy and whether it deserved the status of a fundamental right.
The judges, lawyers and legal experts attempted to crystallise the right in a technological
era where the citizens themselves voluntarily part with personal data.

55
M.P. Sharma v. Satish, AIR 1954 SC 300
56
Kharak Singh vs The State Of U. P. & Others, 1963 AIR 1295, 1964 SCR (1) 332

136
 Now, a brief discussion on right to privacy and its voyage till Puttuswamy case as
follows: The right to privacy new and one of the first of its kind but the concept of
privacy is a well battered topic in the history of Indian Constitution. There is no express
provision for Privacy in the Indian Constitution but the concept is known to be imbibed
in the provision of right to life and liberty guaranteed by Article 21 of the Constitution of
India in Part III. While drafting the constitution, the constitution makers have thoughts fit
to subject such regulations to constitutional limitations by recognition of fundamental
rights to privacy, analogous to the American Fourth Amendment, the framing fathers
opined that “we have no justification to import it into totally different fundamental right
by some process of strained construction. Nor is it legitimate to assume that the
constitutional protection under Article 20(3) would be defeated by the statutory
provisions for searches57”

In 2012 the unanimous judgment delivered by the Supreme Court of India in

Justice K.S. Puttaswamy (Retd) v. Union of India58 is a resounding victory for privacy.
The Supreme Court declared privacy to be an integral component of Part III of the
Constitution of India, which lays down our fundamental rights, ranging from rights
relating to equality (Articles 14 to 18); freedom of speech and expression (Article
19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life and personal liberty
(Article 21) and others. These fundamental rights cannot be given or taken away by law,
and all laws and executive actions must abide by them. The Supreme Court has, however,
clarified that like most other fundamental rights, the right to privacy is not an "absolute
right". Subject to the satisfaction of certain tests and benchmarks, a person's privacy
interests can be overridden by competing state and individual interests The ruling is the
outcome of a petition challenging the constitutional validity of the Indian biometric
identity scheme Aadhaar. The judgment's ringing endorsement of the right to privacy as a
fundamental right marks a watershed moment in the constitutional history of India. The
one-page order signed by all nine judges declares:

57
Farid Ahmad v. State, AIR 1960 Cal. 32
58
Writ Petition (Civil) No. 494 OF 2012

137
 In view of the gravity of the case, the following are a few excerpts of what fell
from both the Bar and the Bench during the days of marathon arguments in the case K.S.
Puttaswamy (Retd.), and Anr. v. Union of India and others59,

4.10.2. From the Bench:

1. Justice S.A. Bobde: If a man has to die with dignity, he has to have some privacy.

2. Justice Rohinton Nariman F. Nariman: Don't forget the little man's right to
privacy, everything about right to privacy is not connected to the Aadhaar issue.
Laws should reflect the “needs of the times” and protect the citizens from
violations by the State and non-State players. It is the duty of the court, and not
the legislature, to interpret the law. Privacy can be read into the Constitution as a
fundamental right as India is part of the United National Declaration of Human
Rights of 1948, which declares privacy as an inalienable human right.

3. Justice D.Y. Chandrachud: Essence of human life is when I want to choose

solitude, I can choose it. And if I want to socially co-habit, I can do it. You
(Centre) are wrong to say that privacy is an elitist construct. Privacy also affects
the masses. For example, there is an increase in instances of cervical cancer
among women in impoverished families. Right to privacy of these women will be
the only right standing in the way of State subjecting them to a 'health trial' or,
say, compulsory sterilization.

4. Chief Justice J.S. Khehar: If what you have been asked to disclose bothers you,
then it infringes your right of privacy. Voices concern over possible misuse of
personal information in public domain.

5. Justice J. Chelameswar: In a Republic founded on a written Constitution, it is

difficult to accept there is no fundamental right to privacy... There is a battery of
judgments saying privacy is a fundamental right, we cannot ignore them. We have

59
K.S. Puttaswamy (Retd.), and anr. v. Union of India and others, Writ Petition (Civil) No 494 OF
2012

138
 to give serious thought to this question. A right may not necessarily confine itself
to one Article in the Constitution or on one amendment.

6. From the Centre, Unique Identification Authority of India (UIDAI) and various
State governments:

7. Attorney-General K.K. Venugopal for the Union Government: Privacy is not a

single, homogenous right but rather as a bunch of rights spread over the
Constitution. The right to privacy is a sub-species of the fundamental right to
personal liberty and consists of diverse aspects. Not every aspect of privacy is a
fundamental right. Some citizens cannot agitate against Aadhaar, saying it is a
violation of their right to privacy. An elite few cannot claim that their bodily
integrity would be violated by a scheme which serves to bring home basic human
rights and social justice to millions of poor households across the country.

8. Additional Solicitor General Tushar Mehta for both UIDAI, the nodal agency for
implementation of Aadhaar, and Madhya Pradesh government: What is so great
about my fingerprints? I touch a file, I leave my fingerprints. These are all
perceived ideas of privacy. We should aim to use technology to the maximum for
the betterment of human beings. Aadhaar has 115.15 crore people enrolled, that is
98% of the population. Privacy is non-negotiable, confidentiality is non-
negotiable under the Aadhaar Act. Privacy cannot be inserted as a new
fundamental right into the Constitution.

9. The Centre's focus is on framing overarching principles for data protection. The
Centre has constituted a committee of experts led by former Supreme Court
judge, Justice B.N. Srikrishna, on July 31, 2017 to identify “key data protection
issues” and suggest a draft Data Protection Bill.

10. Senior advocate Rakesh Dwivedi for Gujarat government: Transparency is a key
component in the modern age and providing basic personal information could not
be covered under right to privacy.

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11. Senior advocate C.A. Sundaram for Maharashtra government: Privacy is not a
fundamental right but only a "concept". Constitution makers had considered and
rejected the idea of privacy as a fundamental right. For something to be a
fundamental right, it has to be tangible and exact. Privacy has no exactitude, in
fact, the concept of privacy varies from person to person. If made a fundamental
right, it would open a flood of litigation.

12. Senior advocate Kapil Sibal for Opposition-ruled Karnataka, West Bengal, Punjab
and Puducherry Governments: Privacy is a constitutional right but not an absolute
one. The State may collect and use personal data of citizens for a legitimate
purpose and not by compulsion. Urges the need for a robust data protection law,
which if violated would lead to serious consequences to curb the leakage of
personal information by non-State players.

13. Senior advocate P.V. Surendranath for Kerala government: Privacy should be
declared a fundamental right to protect citizens from intrusions by the State. In the
modern world, technology has advanced so much that "what is whispered in the
closet is heard in the street".

14. Advocates Arghya Sengupta and Gopal, Sankaranarayanan, representing the

Haryana government and the TRAI and NGO Centre for Civil Society,
respectively: Privacy cannot be declared as a fundamental right.

4.10.3.From the petitioners:

15. Senior advocate Shyam Divan, for the petitioners: A person's body belongs to the
state only in a totalitarian State. A person should have the right to "informational
self-determination". In the Internet age, a person should have control on how
much he should put forward and not be compelled.

16. Senior advocate Sajan Poovayya: Right to privacy does not stand on the pedestal
of secrecy, it holds forth from the pedestal of dignity. My informed surrender of
data to a private player in this digital age is not my surrender of my personal data
to all. If a private player takes my data and gives it to all, I can sue him for breach

140
 of contract. But if I give it to the State, where are the corresponding restrictions
and deterrents?

17. Senior advocate Gopal Subramanium: The right to liberty means the right to make
personal choices, the right to develop one's personality, one's aura, one' thinking
and actions, the freedom of religion and conscience, the freedom to believe or not
believe. For all this, one needs privacy. So the right to liberty and lead a life of
dignity includes the right to privacy. Liberty is a pre-existing natural and inherent
value enshrined in the Preamble of the Indian Constitution. Liberty, dignity and
privacy are inalienable rights necessary to truly understand the Constitution.

18. Senior advocate Soli Sorabjee: Counters Centre’s stand privacy is not a
fundamental right as it is not expressed mentioned in the Constitution. "The
cherished right of Freedom of Press is also not expressedly set down in Article 19
(1). But it is deduced. Like that, privacy can also be deduced from other
fundamental rights," Mr. Sorabjee submitted.

19. Senior advocate Anand Grover: At this stage, we cannot anticipate and have a
formula for privacy, the court may indicate what may be embraced under it and
the rest could be case-specific.

4.11. Changing scenario of Right to Privacy in India

The state intrusion upon privacy is gradually becoming the order of the day in
Indian context and therefore, it has become a matter of great concern in the recent times.
Pertinent questions are being arising as there is a right to live, but whether there is a right
to privacy and if there is, what is the scope and parameters of this right and what the
remedy available to the citizens is in case there is breach of right to privacy. Lord
Denning has forcefully argued for the recognition of a right to privacy thus60:

"English law should recognise a right to privacy. Any infringement of it should

give a cause of action for damages or an injunction as the case may require. It should also
recognise a right of confidence for all correspondence and communications which

60
Lord Denning, 'What Next in Law'

141
expressly or impliedly are given in confidence. None of these rights is absolute. Each is
subject to exceptions. These exceptions are to be allowed whenever the public interest in
openness outweighs the public interest in privacy or confidentiality. In every instance it is
a balancing exercise for the Courts. As each case is decided, it will form a precedent for
others. So a body of case-law will be established."

It was in 1963 in the case of Kharak Singh v. State of U.P61., the Supreme Court
had the occasion to consider the ambit and scope of this right when the power of
surveillance conferred on the police by the provisions of the Uttar Pradesh Police
Regulations came to be challenged as being violative of Articles 19( 1)(d) and Article 21
of the Constitution. The Court repelled the argument of infringement of freedom
guaranteed under Article 19(1)(d) of the Constitution, and the attempt to ascertain the
movements of an individual was held not to be an infringement of any fundamental right.
The minority judgment, however, emphasized the need for recognition of such a right as
it was an essential ingredient of personal liberty.

The petitioner was challenged in a Dacoity case but was released is there was no
evidence against him. The police opened a history sheet against him. He was put under
surveillance -is defined in Regulation 236 of the U. P. Police Regulations. Surveillance
involves secret picketing of the house or approaches to the houses of the suspects,
domiciliary visits at night, periodical enquiries by officers not below the rank of
Sub-Inspector into repute, habits, association, income, expenses and occupation, the
reporting by constables and chaukidars of movements and absences from home, the
verification of movements and absences by means of inquiry slips and the collection
and record on a history sheet of all information bearing on conduct.

The petitioner filed a writ petition under Article 32 in which he challenged the
constitutional validity of Chapter XX of U.P. Police Regulations, in which Regulation
236 also occurs. The defence of the respondent was that the impugned Regulations
did not constitute an infringement of any of the freedoms Guaranteed by Part III of the
Constitution, and even if they were, they had been framed in the interests of the

61
Kharak Singh v. State of U.P., AIR 1963 SC 1295: (1963)

142
General public and public order and to enable the police to discharge its ditty in a more
efficient manner, and hence were reasonable restrictions on that freedom.

The Court held that out of the five kinds of surveillance referred to in Regulation
236, the part dealing with domiciliary visits was violative of Art. 21 of the Constitution
and as there was no law on which the same could be justified it must be struck down
as unconstitutional, and the petitioner was entitled to a writ of mandamus directing the
respondent not to continue domiciliary visits. The other matters constituting surveillance
were not unconstitutional. The secret picketing of the houses of tile suspects could not
in any material or palpable form affect either the right on the part of the suspect to
move freely' or to deprive him of his 'Personal liberty' within the meaning of Art. 21.
In dealing with a fundamental right such as the right to free movement or personal
liberty, that only can constitute an infringement which is both direct as well as tangible,
and it could not be that under these freedoms the Constitution-makers intended to
protect or protected mere personal sensitiveness.

The Court further said: “The term ‘personal liberty’ is used in Article 21 as a
compendious term to include within itself all the varieties of rights which go to make up
the 'personal liberties' of man other than those dealt with in the several clauses of Art.
19(1). While Article 19 (1) deals with particular species or attributes 'of that freedom,
'personal liberty' in Article 21 takes in and comprises the residue. The word "life" in
Article 21 means not merely the right to the continuance of a person's animal
existence, but a right to the possession of each of his organs arms, legs, etc. The
contention of the respondent that if an act of the police involved a trespass to property,
that could give rise to a claim in tort as that action was not authorized by law, and the
remedy of the petitioner was a claim for damages and not a petition under Article 32,
was without any substance and wholly irrelevant for considering whether such action
was in invasion of a fundamental right. It is wholly erroneous to assume that before the
jurisdiction of this Court under Article 32 can be invoked, the applicant must either
establish that he has no other remedy adequate or otherwise or that he has exhausted such
remedies as the law affords and has yet not obtained pro. per redress, for when once it is
proved to the satisfaction of this Court that by State action the fundamental right of the

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petitioner tinder Art. 32 has been infringed, it is not only the right but the duty of this
Court to afford relief to him by passing appropriate orders in this behalf”.

A decade later the Supreme Court seems to have realised the need for recognising
the right to privacy in Govind v. State of Madhya Pradesh62wherein Mathew, J. as Lord
Denning’s indication envisaged its gradual development of the right to privacy was
quoted thus:

“The right to privacy in any event will necessarily have to go through a process of
a case-by-case development"

In the instant case, the petitioner alleges that several false cases have been filed
against him in criminal courts by the police but that he was acquitted in all but two cases.
He says that on the basis that he is a habitual criminal, the police have opened a history
sheet against him and that he has been put under surveillance. While dismissing the
petition, however, the Court held:

“Mere Convictions in criminal cases, where nothing gravely imperilling safety of

society cannot be regarded as warranting surveillance under this Regulation. Similarly,
domiciliary visits and picketing by the police should be reduced to the clearest cases of
danger to community security and not routine follow-up at the end of a conviction or
release from prison or at the whim of a police officer. In truth, legality apart, these
regulations ill-accord with the essence of personal freedoms and the State will do well to
revise the so-old police regulations verging perilously near unconstitutionality”.

Thus, In Gobind v. State of Madhya Pradesh, the Supreme Court held that a
“limited” right to privacy was implied within the ambit of Part III of the Constitution,
which originates from the Articles 19(a), 19(d) and 21. However, it was noted that the
said right is not of an absolute character, and comes with reasonable restrictions arising
out of countervailing public interest63. In this decision, Justice Mathew taking the US
jurisprudence64 into consideration, observed that the right to privacy exists within the

62
Govind v. State of M.P (1975) 2 SCC 148: 1975 SCC (Cri) 468
63
ibid
64
Charles Henry Alexandrowicz-Alexander, American Influence on Constitutional Interpretation in
India, 5 AM. J. COMP. L. 98, 100 (1956).

144
penumbral zones of the Fundamental rights explicitly guaranteed under Part III of the
Constitution65.

The Supreme Court in Sunil Batra v. Delhi Administration66 observed that a

minimal infringement of a prisoner’s privacy is unavoidable as the officers have an
obligation to keep a watch and ensure that their other human rights are being duly
observed.

The scope and ambit of the right of privacy or right to be left alone came up for
consideration before the Supreme Court in R. Rajagopal v. State of Tamil Nadu,67 during
1994. The Supreme Court in R. Rajagopal v. State of Tamil Nadu, again asserted that the
right to privacy is an implicit right under Art. 21 and has acquired sufficient
constitutional status. The Court noted that the said right includes a "right to be let alone"
and the right "to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child-bearing and education among other matters" On a similar note, in
State of Maharashtra v. Madhukar Narayan Mardikar, the Supreme Court held that even
a “woman of easy virtue” is entitled to her privacy and nobody has the authority to invade
her privacy at their sweet will68.

The R. Rajagopal v. State of Tamil Nadu is the case of privacy of a condemned

prisoner was in issue(supra) Justice B.P. Jeevan Reddy, held that on an interpretation of
the relevant articles of the Constitution, in the context of an analysis of case-law from
other common law countries like UK and USA, held that though the right to privacy is
not enumerated as a fundamental right it can certainly be inferred from Article 21 of the
Constitution. The Court in conclusion held thus69:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It is a "right to be left alone". A citizen has a
right to safeguard the privacy of his own, his family, marriage, procreation,

65
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; read with Griswold v. Connecticut, 381
U.S. 479. 510; Jane Roe v. Henry Wade, 410 U.S. 113.
66
Sunil Batra v. Delhi Administration, (1978) 4 SCC 494
67
R. Rajagopal v. State of Tamilnadu, (1994) 6 SCC 632
68
Indian Drugs and Pharmaceuticals Ltd v. Workmen, (2007) 1 SCC 408.
69
R. Rajagopal v. State of Tamilnadu, (1994) 6 SCC 632 (SCC pp. 649-51, para 26)

145
 motherhood, child-bearing and education among other matters. None can publish
anything concerning the above matters without his consent - whether truthful or
otherwise and whether laudatory or critical. If he does so, he would be violating
the right to privacy of the person concerned and would be liable in an action for
damages. Position may, however, be different, if a person voluntarily thrusts
himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon
public records including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer subsists and it
becomes a legitimate subject for comment by press and media among others. We
are, however, of the opinion that in the interests of decency Article 19(2) an
exception must be carved out to this rule, viz., a female who is the victim of a
sexual assault, kidnapping, abduction or a like offence should not further be
subjected to the indignity of her name and the incident being publicised in the
press/media.

(3) There is yet another exception to the rule in (1) above - indeed, this is not an
exception but an independent rule. In the case of public officials, it is obvious,
right to privacy, or for that matter, the remedy of action for damages is simply not
available with respect to their acts and conduct relevant to the discharge of their
official duties. It needs no reiteration that judiciary, which is protected by the
power to punish for contempt of court and the Parliament and legislatures
protected as their privileges are by Articles 105 and 104 respectively of the
Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions
exercising governmental power are concerned, they cannot maintain a suit for
damages for defaming them.

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(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any
similar enactment or provision having the force of law does not bind the press
or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose
a prior restraint upon the press/media.

It may be noted that the Court has cautioned that the above principles are not
exhaustive. It has also not examined the impact of Article 19(1)(d) read with Sections
499(2) and 500 IPC. Here again the court preferred to leave the contours of this right to
develop through a case-by-case method.

4.12. Conclusion

In the contemporary world, more than 150 national constitutions mention the right
to privacy either explicitly or provide provisions impliedly in their fundamental law. In
the recent past, attempts are being made to clearly and precisely define a "right to
privacy". Though a precise definition of the word ‘right to privacy’ can be found, but the
concept and its importance can be traced from various sources. The right to privacy is
perhaps one of the most difficult rights to actually define. The right to privacy is an
element of various legal traditions to restrain government and private actions that threaten
the privacy of individuals. The law thus declared by the Supreme Court that right to
privacy - a right to be left alone - is implicit in the right to life and personal liberty
guaranteed under Article 21 of the Constitution - is a signpost in the future development
of this right.

In the next chapter, the researcher has extensively discussed on the Law relating
to Right against self-incrimination, Indian perceptive with that of international scenario.

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 CHAPTER – V

RIGHT AGAINST SELF-INCRIMINATION :

COMPARATIVE LAW- SPECIAL INSIGHT TO INDIAN
SCENARIO.

In this chapter, the researcher has discussed extensively with regard to

comparative legal provisions relating to right against self incrimination in various
countries of the world with special focus under Indian scenario along with available
constitutional provisions.

5.1. Introduction

According to Black’s dictionary, self-incrimination means acts or declarations

either as testimony at trial or prior to trial by which one implicates himself in a crime.

Self-incrimination is the act of exposing oneself "to an accusation or charge of

crime; to involve oneself or another person in a criminal prosecution or the danger
thereof. This concept is generally involves by making a statement. In legal definition,
incriminate means to charge with crime; to expose to an accusation or charge of crime; to
involve oneself or another in a criminal prosecution or the danger thereof; as, in the rule
that a witness is not bound to give testimony which would tend to incriminate him.
Incriminating admission is the term applies to a statement that leads towards establishing
guilt. Incriminating Circumstance is the situation that tends to prove that a person is
guilty of committing a crime. Self-incrimination may occur as a result of interrogation or
may be made voluntarily.

The development of the accused’s right to counsel and to call witness, together
with the tradition that the accused should not be put under oath, culminated in a general
rule of compulsory silence in the 19 th century1. During this period, the ‘privilege’
acquired its greatest significance since the enforced silence could not logically give rise

1
C. Howard, Criminal Justice in England, London, 1931, 373; Heydon, J.D., “Confessions and
Silence” Sydney L.R. Vol.VII, 1976, 375 at 379-80.

148
to an inference of guilt. Later, in the same century the concern for innocent led to an
enabling legislation being passed in England2 and the United States also, whereby the
accused was permitted to testify if he so chooses, but no provision has been made for an
adverse inference from the accused’s failure to testify3. The procedural, safeguard of the
right of the accused developed and modified in the centuries in the interest of justice has,
further, been modified with the passage and incorporation of Bill of Rights by many
democratic countries in their Constitutions. The presumption of guilt of the accused gave
rise to a number of inhuman practices like torture - a third degree method for the
extortion of confession. Under the ancient laws, torture was an essential part of the
procedure based on ordeal test similar to the presumption of guilt4.

The presumption of innocence was first applied in Nobokisto’s case5 where it was
held that the golden rule of criminal justice is that an accused is presumed to be innocent
till he was proved to be guilty; thus, the law required the accuser to prove all facts
compatible with his guilt and incompatible with his innocent. In this respect the law does
not weigh in golden scales the conflicting testimony tendered by each side, but takes its
stand on the side of the accused, it examines all facts and circumstances with due care
and; caution not abusing the liberties of those who are placed under its protection6.

In Indian the presumption of innocence has been recognised by section 101 of the
Indian Evidence Act, 1872 and also by section 313 of the Code of Criminal Procedure,
1973. Prior to the framing and enforcement of the Constitution of India, ensuring
prohibition against ‘self-incrimination’ by its Article 20 (3). The resembling provision
were under Section 342 of Code of Criminal Procedure, 1973. Before the enactment and
enforcement of the Code of Criminal Procedure, 1898, such provisions were in existence
under section 3 of Act, 15 of 1852.

The privilage against self-incrimination forbids the government from compelling

any person to give testimonial evidence that would likely to incriminate him or her during

2
Criminal Evidence Act, 1898, 61 & 62 Viet. C. 36(i)(e)(f).
3
Williams, G. The ProofofGuilt, 3rd edn., 1963, at 63-66.
4
Stephen, J.F., A History of Criminal Law ofEngland, Vol.l, London, 1883, at 441
5
Queen v. Nobokislo, (1867) 8 W.R. (Cri.) 87.
6
Queen K. Beharee (1865), 3 W.R. (Cri.) 23,26.

149
a subsequent criminal case. This right enables a defendant to refuse to testify a a criminal
rail. Confessions, admissions, and other statements taken from defendants in violation of
this right are inadmissible against them during a criminal prosecution. Convictions based
on statements taken in violation of the right against Self-Incrimination normally are
overturned on appeal, unless sufficient admissible evidence is available to support the
verdict. The right against self-incrimination may only be asserted by persons and does not
protect artificial entities such as corporations7.

Self-incrimination can occur either directly or indirectly: directly, by means of

interrogation where information of a self-incriminatory nature is disclosed; or indirectly,
when information of a self-incriminatory nature is disclosed voluntarily without pressure
from another person. Thus, in many legal systems, accused criminals cannot be
compelled to incriminate themselves—they may choose to speak to police or other
authorities, but they cannot be punished for refusing to do so. The precise details of this
right of the accused vary between different countries.

The privilege against “self incrimination” is a fundamental protection under

Common law. In English criminal law, one golden thread is always to be seen, that it is
the duty of the prosecution to prove the prisoner’s guilt. Woolmington v. DPP8 is a
famous House of Lords case, where the presumption of innocence was first articulated in
the Commonwealth9.

Article 20 (3) of the Indian Constitution, the defendant has the right against self-
incrimination, but witnesses are not given the same right. "No person accused of any
offence shall be compelled to be a witness against himself". Of various concepts, the
common law are based on the principle that no one is bound to criminate himself10.
Hence although an accused person may of his own accord make a voluntary statement as
to the charge against himself, a justice, before receiving such statement from him is
required to caution him that he is not obliged to say anything and that what he does say

7
Doe v. United States, 487 U.S 201,108 S. Ct. 2341, 101 L. Ed. 2D184 (1988).
8
Woolmington v, DPP (1935) UKHL 1 is a landmark House of Lords case, where the presumption of
innocence was first articulated in the Commonwealth.
9
Woolmington v. DPP (1935) AC 462
10
The Law Lexicon, 2nd edition, 2006, justice Y.V. Chandrachud, p. 1298

150
may be given in evidence against himself. Therefore, it also raises the rule that evidence
of a confession by the accused is not admissible, unless it is proved that such confession
was free and voluntary.

The privilege against self-incrimination enables the maintenance of privacy right

of human beings as human right in the enforcement of criminal justice. It also goes with
the maxim Nemo Tenetur Seipsum Accusare i.e., “No man, not even the accused himself
can be compelled to answer any question, which may tend to prove him guilty of a crime,
he has been accused of.” This privilege not to be compelled to give evidence against
oneself and it occupy an honourable place in the history of Anglo-American law.

Blackstone regarded the maxim as representative of the development of English

jurisprudence and the contemporary authors have continued to bestow praise on the
privilege as one of the great landmarks in man's struggle to make him civilized.

This principle implies that if the confession from the accused is derived from any
physical or moral compulsion it should stand to be rejected by the court. The right against
forced self-incrimination, popularly and widely known as the Right to Silence is
enshrined in the Code of Criminal Procedure (Cr.P.C) and also the Indian Constitution.
Section 161 of Criminal Procedure Code11 is the provision which has guarded a citizen’s
right against self-incrimination. However, where the accused makes a confession without
any inducement, threat or promise, the provisions of Article 20 (3) of Constitution of
India does not apply. The ius commune or common law of the 12th and 13th centuries, a
combination of the Roman and canon laws, included an early privilege against self-
incrimination that influenced the modern iteration of the privilege at common law12.

William Blackstone in his Commentaries on the Laws of England (1765-1769)

explained that the maxim was enlivened where a defendant’s ‘fault was not to be wrung

11
Section 161 (2) Cr.P.C., Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.
12
R. Helmholz, ‘Introduction’ in R. Helmoholz (ed), The privilege against self-incrimination: its
origins and development (University of Chicago Press, 1997, p. 7

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out of himself, but rather to be discovered by other means and other men’13. Jeremy
Bentham was a fierce critic of the privilege, arguing in 1827 that the privilege had the
inevitable effect of excluding the most reliable evidence of the truth—that which is
available only from the person accused14. A corollary of this rationale in providing right
against self-incrimination is that the stressful environment of police interviews may be
‘conducive to false confessions on account of the authority of police, the isolation,
uncertainty and anxiety of the suspect and the expectations of the interrogation officer’.
These factors may put pressure on defendants to provide information which may
incriminate them, is prejudicial to their case, or even information is false. Therefore, the
right to claim the privilege against self-incrimination can act as one safeguard against the
false confession of nervous, yet innocent, defendants.

5.2. International Instruments on Right Against Self Incrimination

The interrelationship between the “right against self incrimination” and the “right
to fair trial” has been recognised in most jurisprudence as well as international human
rights instruments. The meaning and scope of this privilege has been judicially moulded
by recognising its interrelationship with other constitutional rights such as the protection
against “unreasonable search and seizure” and guarantee of “due process of law”.
International Convent on Civil and Political Rights, 1966 (ICCPR) Article 14 recognizes
the right of a person charged with a criminal offence not to be required to incriminate him
or herself. This appears a significantly broader right, applicable to people having the right
to avoid self incrimination either as witnesses in criminal proceedings against another
person, or in non-criminal proceedings such as coronial inquiries, inquiries by regulatory
bodies, or inquiries by bodies such as anti-corruption or anti-crime commissions.

The privilege against self-incrimination made an unexpected and faltering entry

into European human rights law. Under then European Convention for the Protection of
Human Rights and Fundamental Freedoms, 1950 and Article 615 states that every person
charged with an offence has a right to a fair trial and Article 6 (2) provides that

13
William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) vol
IV, 293.
14
Jeremy Bentham, Rationale of Judicial Evidence (Garland Publishers, 1827) Bk 9, Ch 1, 339.
15
Article 6 of the Convention provides for right to fair trail.

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“everybody charged with a criminal offence shall be presumed innocent until proved
guilty according to law.” The guarantee of “presumption of innocence” bears a direct link
to the “right against self-incrimination” since compelling the accused person to testify
would place the burden of proving innocence on the accused instead of requiring the
prosecution to prove guilt.

The right of silence is closely related to the privilege against self-incrimination,

threat of coercion in order to make an accused yield certain information, whereas the
former concerns the drawing of adverse inferences when an accused fails to testify or to
answer questions—and neither of them appears on the face of the European Convention.
Their close relationship to the right to a fair trial under the Convention was confirmed in
the Court’s judgment, citing the U.N.’s International Covenant on Civil and Political
Rights (1966), which declares the privilege in Article 14(3)(g). The privilege against self-
incrimination is an implied right that forms part of the right to a fair hearing embodied in
Article 6.

5.3. Right against self-incrimination in United States of America

The Bill of Rights lays down the foundation of self-incrimination in the United
States. The Fifth Amendment of the US Constitution came into effect from 15 th
December 1791 provides for right against self-Incrimination. The source of the Self-
Incrimination Clause was the maxim “nemo tenetur seipsum accusare,” that “no man is
bound to accuse himself.”

The maxim is but one aspect of two different systems of law enforcement which
competed in England for acceptance; the accusatorial and the inquisitorial. In the
accusatorial system, which predated the reign of Henry II but was expanded and extended
by him, first the community and then the state by grand and petit juries proceeded against
alleged wrongdoers through the examination of others. The inquisitorial system which
developed in the ecclesiastical courts compelled the alleged wrongdoer to affirm his
culpability through the use of the oath ex officio. Under the oath, an official had the
power to make a person before him take an oath to tell the truth to the full extent of his
knowledge as to all matters about which he would be questioned; before administration

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of the oath the person was not advised of the nature of the charges against him, or
whether he was accused of crime, and was also not informed of the nature of the
questions to be asked16.

Thus, right against self-incrimination is that no person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use, without just
compensation.

However this privilege has also been evolved and strengthened by virtue of a lot
of judicial pronouncements. Initially, in Adamson vs. California17, the question relating
to the right to silence came to be considered. The majority did not refer to the Fifth
Amendment. But the minority laid down, while referring to the Fifth Amendment, that
the right to silence was absolute in US. Subsequently, in Griffin v. California18 the
Supreme Court of United States refused to permit prosecuratorial or judicial comment to
the jury upon a defendant’s refusal to take the ‘stand’ in his own behalf. The Court stated
that the defendant had an absolute right not to take the “stand” and that no adverse
inference of guilt can be drawn if the defendant exercises his right to silence. The
famous case of Miranda vs. Arizona19 broadened the horizon of the Fifth Amendment of
USA and after which right against self incrimination have started being popularly
referred as “Miranda Rights”. This was a landmark decision of the United States Supreme
Court. In a 5–4 majority, the Court held that both inculpatory and exculpatory statements
made in response to interrogation by a defendant in police custody will be admissible at
trial only if the prosecution can show that the defendant was informed of the right to
16
Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the
Ecclesiastical Courts in England, in Essays In History And Political Theory In Honor Of Charles
Howard Mcilwain 199 (C. Wittke ed., 1936).
17
Adamson v. California, 332 U.S. 46 (1947) 1
18
Griffin v. California, 380 U.S. 609 (1965)
19
Miranda v. Arizona, 384 U.S. 436 (1966

154
consult with an attorney before and during questioning and of the right against self-
incrimination before police questioning, and that the defendant not only understood these
rights, but voluntarily waived them.

In Withrow v. Williams20, it was reiterated that statements made by a prisoner

during an interrogation after threats of imprisonment by police officers, and before being
given Miranda warnings, could not be used in determining his guilt. In view of the above,
it can be said that the Fifth Amendment expressly conferred on the citizens of USA the
privilege against self incrimination ensuring the protection and the rights of an accused.
Along with the Fifth Amendment a lot of judicial pronouncements have also been
instrumental in strengthening the legal position over this right and this right is as of today
the bedrock principle of the criminal jurisprudence of American legal system.

However, the United States has a public safety exception to the right against self-
incrimination21. In New York v. Quarles, the Court held that there was a “public safety”
exception to the requirement that Miranda warnings be given before a suspect's answers
could be admitted into evidence, and that the availability of that exception did not depend
upon the motivation of the individual officers involved.

It is generally presumed by Lawyers and ordinary persons i.e., non-lawyers alike

and typically think of the right against self- incrimination as a principle that arises only in
criminal proceedings. The reality, however, is that the decision about whether to invoke
the privilege in a civil proceeding may be equally important.

As the Supreme Court observed, “in civil proceedings, there are costs when a
party asserts the privilege against self-in- crimination; ‘[i]t will, for example, always
disadvantage opposing parties… since it keeps them from obtaining information they
could otherwise get. In case of Baxter v. Palmigiano22, quoting United States v. 4003-
4005™23, “Consequently, ‘the Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to probative

20
Withrow v. Williams, 507 U.S. 680 (1993)
21
New York v. Quarles, 467 U.S. 649 (1994)
22
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976),
23
United States v. 4003-4005 5th Ave., 55 F.3d 78, 82 (2d Cir.1995).

155
evidence offered against them. In Baxter, 425 U.S. Accord United States v. Solano-
Godines24, the Fifth Amendment does not forbid fact finders from drawing adverse
inferences against a party who refuses to testify. Thus, the privilege against Self-
incrimination extends to the production of documents that could provide a link in the
chain needed to prosecute where the act of production implies an assertion of fact.

The Fifth Amendment to the United States of America Constitution25 grants every
American the right to refuse to give testimony that would incriminate himself, or cause
himself to appear guilty of a crime. On June 8, 1789, Congressman James Madison
introduced several proposed constitutional amendments during a speech to the House of
Representatives. After approval by Congress, the amendment was ratified by the states on
December 15, 1791 as part of the Bill of Rights. The amendment as proposed by
Congress in 1789 reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.

The U.S. Fifth Amendment does not actually use the term “self incrimination,”
but states “No person … shall be compelled in any criminal case to be a witness against
himself.” This right against self incrimination protects individuals from being required to
answer questions in any civil or criminal proceeding, whether formal or informal, if they
feel the answers may incriminate them in a future proceeding. To explore this concept,
consider the following self incrimination definition.

The Fifth Amendment specifically refers to testimony in a criminal case; the U.S.
Supreme Court has ruled that the right against self incrimination may also be claimed

24
Baxter, 425 U.S. Accord United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997)
25
The Fifth Amendment (Amendment V) to the United States Constitution is part of the Bill of Rights
and protects individuals from being compelled to be witnesses against themselves in criminal cases.

156
during civil matters as well as administrative and legislative proceedings. An individual
may assert his Fifth Amendment rights at any point during a legal proceeding, from the
Grand Jury26 investigation through the trial itself. Not only may the defendant27 in such a
legal matter claim this right, but other witnesses as well. By judicial Interpretation, the
above provision has been given a very wide connotation. The privilege against Self-
Incrimination has been held to apply to witnesses as well as parties in proceedings i.e.,
both criminal and civil. This right also covers documentary evidence and oral evidence,
and extends to all disclosures including answers which by themselves support a criminal
conviction or furnish a link in the chain of evidence needed for a conviction.

The Fifth Amendment to the United States Constitution provides that “nor shall a
person be compelled in any criminal case to be a witness against himself.” This provision
is widely known as the privilege against self-incrimination or the right to silence. The
right to silence incorporates four basic rules. They are such that firstly, the accused under
certain circumstances is exempted from the duty to comply with such request to reveal
when his compliance might reveal information exposing him to a prospect of criminal
prosecution and conviction, the fact finders may not draw any adverse inferences from a
criminal defendant’s refusal to testify in his defence or answer questions during police
interrogation or when the police or other law enforcement agency elicits an involuntary
confession from a suspect, the confession cannot be admitted into evidence and the trial
judge must suppress it and finally a suspect’s confession will be deemed involuntary as a
matter of law and, consequently, inadmissible when the police deprive him of his
Miranda rights at custodial interrogation.

In the United States of America, under Miranda worming28, the police must tell
the suspect at the beginning of his interrogation that he is entitled to remain silent; that
anything he will say might be used as evidence against him at his criminal trial; and that
he is entitled to consult an attorney (at his own expense or at the government’s expense,
if the suspect is poor) and have that attorney present at the interrogation. The Miranda
warning or a person's Miranda rights, is a right to silence warning given by police in the

26
Since colonial times, America has embraced the custom of the grand jury in criminal law.
27
A defendant is a person or entity that is facing a civil lawsuit, or that has been accused of a crime.
28
Miranda v. Arizona, 384 US 436 (1966).

157
United States to criminal suspects in police custody or in a custodial interrogation before
they are interrogated to preserve the admissibility of their statements against them in
criminal proceedings. A typical Miranda warning can read as follows:

"You have the right to remain silent. Anything you say can be used against you.
You have the right to an attorney. If you cannot afford one, one will be appointed to you
by the court. With these rights in mind, are you still willing to talk with me about the
charges against you?"

The Miranda warning is part of a preventive criminal procedure rule that law
enforcement are required to administer to protect an individual who is in custody and
subject to direct questioning or its functional equivalent from a violation of his or her
Fifth Amendment right29 against compelled self-incrimination. In Miranda v. Arizona30,
the Supreme Court held that the admission of an elicited incriminating statement by a
suspect not informed of these rights violates the Fifth Amendment and the Sixth
Amendment right to counsel, through the incorporation of these rights into state law.
Thus, if law enforcement officials decline to offer a Miranda warning to an individual in
their custody, they may interrogate that person and act upon the knowledge gained, but
may not use that person's statements as evidence against him or her in a criminal trial.

Again in In Berkemer v. McCarty31, the Supreme Court decided that a person

subjected to custodial interrogation is entitled to the benefit of the procedural safeguards
enunciated in Miranda, regardless of the nature or severity of the offense of which he is
suspected or for which he was arrested. As a result of the caselaw, American English
developed the verb Mirandize, meaning "read the Miranda rights to" a suspect. However,

29
The Fifth Amendment (Amendment V) to the United States Constitution is part of the Bill of Rights
and protects individuals from being compelled to be witnesses against themselves in criminal cases.
30
Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the United States Supreme
Court. In a 5–4 majority, the Court held that both inculpatory and exculpatory statements made in
response to interrogation by a defendant in police custody will be admissible at trial only if the
prosecution can show that the defendant was informed of the right to consult with an attorney before
and during questioning and of the right against self-incrimination before police questioning, and that
the defendant not only understood these rights, but voluntarily waived them.
31
Berkemer v. McCarty, 468 U.S. 420 (1984), is a decision of the United States Supreme Court which
ruled that, in the case of a person stopped for a misdemeanor traffic offense, once they are in custody,
the protections of the Fifth Amendment apply to them pursuant to the decision in Miranda v. Arizona
384 U.S. 436 (1966).

158
the Miranda rights do not have to be read in any particular order, and they do not have to
precisely match the language of the Miranda case32 as long as they are adequately and
fully conveyed. However, in Berghuis v. Thompkins33, the Supreme Court held that
unless a suspect expressly states that he or she is invoking this right, subsequent
voluntary statements made to an officer can be used against them in court, and police can
continue to interact with or question the alleged criminal. After independence, America
adopted the English common law tradition of protecting subjects by adopting the jury
system which included traditional English common law privileges of indictment, venue,
representation, confrontation and a general verdict. In 1788 New York ratified a
Convention that a Federal Bill of Rights including the provision that in all criminal
prosecutions, the accused should not be compelled to give evidence against himself.
Thus, right against self-incrimination in the fabric of constitution has became privilege
was part of the larger process by which a diverse collection of criminal procedure
doctrines became fundamental law in the USA. Those rules were components of the
common law’s structure for protecting subjects’ rights under the 18th century British
Constitution. However, the reality today is that over 90% of all felony convictions are by
guilty plea. Behind this figure lies the practice of plea-bargaining34.

In plea-bargaining, the matter can conclude a criminal case without trial. When it
is successful, plea bargaining results in a plea agreement between the prosecutor and
defendant. In this agreement, the defendant agrees to plead guilty without atria, and, in
return, the prosecutor agrees to dismiss certain charges or make favorable sentence
recommendations to the court. Plea bargaining is expressly authorized in statutes and in
court rules35. Prosecutors and other officials exert much pressure on defendants, not only
to obtain an answer, but to secure an unqualified admission of guilt. The Federal

32
Cited supra.
33
Berghuis v. Thompkins, 560 U.S. 370 (2010), is a landmark decision by the United States Supreme
Court in which the Court considered the position of a suspect who understands his or her right to
remain silent under Miranda v. Arizona and is aware he or she has the right to remain silent, but does
not explicitly invoke or waive the right.
34
Plea Bargaining is the process whereby a criminal defendant and prosecutor reach mutually
satisfactory disposition of criminal case, subject to court approval.
35

Infederalcourt,forexample,pleabargainingisauthorizedbysubsection(e)ofrule11oftheFederalRulesof
CriminalProcedure.

159
Sentencing Guidelines presently promise a substantially discounted sentence to a
defendant who supplies “complete information to the government concerning his own
involvement in the offence”. Few other nations are as dependent as the USA on proving
guilt from a defendant’s own mouth. This is a contrary position to the revered principle of
American constitutional law. The privilege as embodied in the US Constitution may be
simply to prohibit methods of interrogation and not to afford criminal defendants a right
to refuse to respond to incriminating questions.

5. 4. Right against self-incrimination in United Kingdom

The privilege against self- incrimination is often represented as a principle of

fundamental importance in the law of criminal procedure and evidence. The basis of this
is that a logical implication of recognising this privilege should be that a person cannot be
compelled, on pain of a criminal sanction, to provide information that could reasonably
lead to his or her prosecution for a criminal offence. However, there are certain statutory
provisions in England and Wales making it a criminal offence not to provide particular
information that, if provided, could be used in a subsequent prosecution of the person
providing it.

In the 16th and early 17th century, the English judges used the maxim of ‘nemo
tenetur prodere seipsium’ to prevent the ecclesiastical courts from acting beyond the
scope of their jurisdiction. In the late 16th century, opposition to the religious policies of
the church clashed with the expansive view of the supervising powers of the common law
judges. This produced arguments that writs should issue to keep the ecclesiastical courts
from requiring defendants answering incriminating questions. Therefore they sought to
establish an effective privilege against self-incrimination.

In 1640, the practice of interrogating defendants under oath came to an end. By

the 18th century, English Criminal Procedure made it virtually impossible for a privilege
against self-incrimination to be asserted effectively by persons charged with a crime. This
was the indirect result of the common law’s refusal to allow criminal defendants to be
represented by a lawyer. Without professional assistance, persons accused of a crime had
little choice but to speak for themselves. Criminal defendants conducted their own

160
defence. Defendants could not be sworn but they were allowed to speak on their own
behalf and almost all did so. But if they did not speak, no-one spoke for them. In such a
case, assertion of a right not to answer incriminating questions amounted to a right to
forego real defence.

This was supported by Wigmore’s writings which state that he found little
evidence that privilege was being exercised during the 17th Century and early 18th
Century. In the 18th Century, lawyers were crucial in the development of privilege.
English law virtually guarantees representation by a lawyer through a system of legal
aid. With the arrival of lawyers since the 18th century came the possibility of effective
implementation of the privilege against self-incrimination. By the 19th century, the
privilege became the subject of heated controversy as it began to be fully implemented.

Professor Andrew Choo36 examines the operation of this principle in criminal

proceedings. He says the research highlights several doctrinal and theoretical issues that
are of particular contemporary concern.

"The evidence demonstrates that despite the supposed importance of the privilege
against self-incrimination, there is little agreement on its content or effect. The law as it
has developed over the years cannot very easily be rationalized. This is partly because of
a lack of care or consistency in the articulation by the courts of the legal rules that govern
the privilege."

The ‘right to silence’ is a principle of common law and it means that normally
courts or tribunals of fact should not be invited or encouraged to conclude, by parties or
prosecutors, that a suspect or an accused is guilty merely because he has refused to
respond to questions put to him by the police or by the Court. The origins of right to
silence may not be exactly clear but the right goes back to the middle ages in England.
During the 16th century, the English Courts of Star Chamber and High Commission
developed the practice of compelling suspects to take an oath known as the “ex-officio
oath” and, the accused had to answer questions, without even a formal charge, put by the

36
Andrew Choo , The Privilege Against Self-Incrimination and Criminal Justice, Hart Publishing,
2013 London

161
judge and the prosecutor. If a person refused to take oath, he could be tortured. These
Star Chambers and Commissions were later abolished.

The right to silence is based on the principle ‘nemo debet prodere ipsum’, the
privilege against self-incrimination. The privilege originated in Roman Common Law,
applying first to witnesses and to allegations of crime in civil proceedings before it was
extended to the accused in criminal law. The Criminal Law Revision Committee of the
United Kingdom, 1972 in its 11th Report held that the principle did not emerge until the
19th century37.

The right to silence has various facets. One is that the burden is on the State or
rather the prosecution to prove that the accused is guilty. Another is that an accused is
presumed to be innocent till he is proved to be guilty. A third is the right of the accused
against self incrimination, namely, the right to be silent and that he cannot be compelled
to incriminate himself. However, this rule is subject to certain exceptions. The exceptions
may include in compelling the accused to submit to investigation by allowing his
photographs taken, voice recorded, his blood sample tested, his hair or other bodily
material used for DNA testing etc.

Today, self-incrimination in the United Kingdom legal system can be argued that
the specific protections embodied in the Police and Criminal Evidence Act 1984 give
advantage to the suspect. The United Kingdom’s Police and Criminal Evidence Act 1984
is similar to the criminal procedure of the USA. The balance of power between
prosecution and defendant has shifted in favour of the defendant even though the right to
silence during a police interview can be brought to the attention of the jury if a case were
to be brought against the suspect.

5. 5. Right against self-incrimination in Australia

In Australia, The common law privilege against self-incrimination entitles a

person to refuse to answer any question, or produce any document, if the answer or the

37
The Right to Silence: A Review of the Current Debate) (1990) Vol. 53 Mod L Rev p. 709

162
production would tend to incriminate that person38. Broadly referred to this as the
privilege against self-incrimination, the concept encompasses three distinct privileges: a
privilege against self-incrimination in criminal matters; a privilege against self-exposure
to a civil or administrative penalty including any monetary penalty which might be
imposed by a court or an administrative authority, but excluding private civil proceedings
for damages and a privilege against self-exposure to the forfeiture of an existing right.

Sections 128 and 132 of Evidence Act, 1995 deals with right against self-
incrimination in Australia. Part 3.10 Privileges, Division 2 – Other Privileges, Section
128 of Evidence Act1995 deals with the provisions relating to privilege in respect of self-
incrimination in other proceedings. The privilege applies where a witness objects to
“giving particular evidence”, or “evidence on a particular matter”, on the ground that the
evidence may tend to prove that the witness has committed an offence against, or arising
under, an Australian law or a law of a foreign country, or is liable to a civil penalty:
s128(1). Section 128(1) of the Uniform Evidence Acts, 1995 applies where a witness
objects to giving particular evidence that ‘may tend to prove’ that the witness has
committed an offence under Australian or foreign law, or is liable to a civil penalty.

In Australia has no constitutional protection for the right to silence39, but it is

broadly recognized by State and Federal Crimes Acts and Codes and is regarded by the
courts as an important common law right and a part of the privilege against self-
incrimination40. In general, criminal suspects in Australia have the right to refuse to
answer questions posed to them by police before trial and to refuse to give evidence at
trial. However a person must answer questions related to their name and place of
residence if asked to by police. As a general rule judges cannot direct juries to draw
adverse inferences from a defendant's silence41 but there are exceptions to this rule, most
notably in cases which rely entirely on circumstantial evidence which it is only possible

38
Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 CLR 328, 335
39
Azzopardi v R [2001] HCA 25; 205 CLR 50; 179 ALR 349; 75 ALJR 931 (3 May 2001)"
40
Australian Law Reform Commission Interim Report 127, Traditional Rights and Freedoms -
Encroachments by Commonwealth Law.
41
Petty and Maiden v R - [1991] HCA 34 - Petty and Maiden v R (05 September 1991) - [1991] HCA
34 (05 September 1991)

163
for the defendant to testify about42. This exception has been abolished in Victoria by
sections 42 and 44 of the Jury Directions Act 2015.

5. 6. Right against self-incrimination in Canada

The Canadian Charter of Rights and Freedoms protects witnesses against self-
incrimination. Section 13 of the Charter states: “A witness who testifies in any
proceedings has the right not to have any incriminating evidence so given used to
incriminate that witness in any other proceedings, except in a prosecution for perjury or
for the giving of contradictory evidence.” The Supreme Court has described this
protection as a quid pro quo: a witness is compelled to give evidence, even if that
evidence may incriminate him or her, on the condition that the evidence will not be used
to establish his or her guilt. Principle against self-incrimination has been referred to by
the Supreme Court of Canada as an overarching, fundamental principle and the single
most important organizing principle in criminal law43.

In Canada, principle against self-incrimination is regulated by the Charter and

Evidence Acts (Federal and Provincial) Three important protections arising from the
legislation (1) - Use Immunity, (2) - Derivative Use Immunity, (3)- Constitutional/
Testimonial Exemption One important right that does not arise in Canada the right to
"take the Fifth44" Protects a witness from having his/her compelled incriminating
testimony used directly against him/her in a subsequent proceeding, except for
prosecution of perjury.

A compelled testimony means a person is statutorily compelled to give evidence -

includes a witness in a civil/criminal trial or regulatory hearing who gives evidence, even
if attendance not secured by subpoena - includes a defendant who gives oral evidence on
discovery in a civil proceeding.

42
Weissensteiner v R - [1993] HCA 65 - Weissensteiner v R (17 November 1993) - [1993] HCA 65
(17 November 1993)
43
R. v. Henry, [2005] 3 S.C.R. 609
44
Take the fifth may refer to: Invoking the Fifth Amendment to the United States Constitution, which
says that no person "shall be compelled in any criminal case to be a witness against himself"

164
 According to Canadian approach to self-incrimination, it is evidence that the
Crown could use at the subsequent proceeding, if it were permitted to do so, to prove
guilt (i.e., to prove or assist in proving one or more of the essential elements of the
offence for which the witness is being tried). This does not include evidence from the
prior proceeding that the Crown wishes to use for the sole purpose of impeaching the
witness's testimony at the subsequent proceeding. In addition to the Charter, use
immunity is also provided for in the Canada Evidence Act45, the Ontario Evidence Act 46
and other provincial evidence statutes. Further, the Constitutional/Testimonial Immunity
A right to silence provides that a witness is not required to testify if the purpose of
obtaining his/her testimony is to expose him/her to penal liability Established where the
predominate purpose of the civil, administrative or inquisitorial proceeding is a
colourable administrative or inquisitorial proceeding is a colourable attempt by
police/prosecutors to obtain evidence for criminal prosecution In other words, the other
proceeding is an abuse of process. Under Canadian law, an accused cannot be compelled
to testify in a criminal proceeding47. But, the accused can be compelled to give all
manner of evidence in a prior/concurrent civil proceeding Means through which evidence
can be compelled in a civil proceeding including (1) Documentary discovery (Rule 30),
(2) Documentary discovery (Rule 30), (3) Examination for discovery (Rule 31), (4)
Inspection of property (Rule 32), (5) Medical examination (Rule 33) and (6) Written
interrogatories (Rule 35).

The general principles of self-incrimination in Canadian laws provide that the

right against self-crimination protects an accused from cooperating in their own
conviction and abuse by state power. This right is a principle of fundamental justice
under Section 7 of the Charter48. The accused can never be forced to testify in their own
trial. If the accused chooses to testify they are protected from having any prior testimony
they have given, be it in criminal or civil context, from being used to incriminate them.

45
Section 5 of Canada Evidence Act
46
Section 9 of Canada Evidence Act
47
Charter, section 11(c)
48
Section 7 of the Charter deals with Life, liberty and security of person - Everyone has the right to
life, liberty and security of the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice

165
The "right to silence" is protected both under Section ns 7 and s. 11(c). It includes the
right to choose whether to make a statement to authorities.

The purpose of the right to silence is to "limit the use of the coercive power of the
state to force an individual to incriminate himself", it is not simply to protect a person
from incriminating himself per se. Thus, the right against self-incrimination is one of the
cornerstones of Canadian criminal law R. v. Henry49. The purpose of Section 13 is to
protect individuals from being indirectly compelled to incriminate themselves50. The
purpose of the right is to foster the truth-seeking objectives of the justice system by
guaranteeing immunity to a witness in respect of any self-incriminating testimony that the
witness might be compelled to give. By guaranteeing that such self-incriminatory
statements will not be used against a person in other proceedings, the right assuages
witnesses’ fears that their testimony may expose them to criminal jeopardy. The State,
when compelling a witness to testify in a proceeding, thus offers the witness a quid pro
quo: in exchange for full and frank testimony, the State will not use any incriminating
testimony so given to incriminate the witness in a subsequent proceeding51.

The right to remain silent is one of the most basic and fundamentally important
rights in Canadian criminal law. At its most basic, the right to silence means that absent
any legal obligation to the contrary, no one is obliged to speak to the police or respond to
police questioning. For accused or detained people, this is a constitutionally protected
right. The right to silence means that a detainee has the right to choose whether or not to
speak or give a statement to the police. When an individual has indicated they do not
wish to say anything, the only way to meaningfully assert that right is to stay silent
regardless of what the police might say or do52. Regardless of what the police might say,
an accused person has absolutely no obligation to assist the State with an investigation or
prosecution. In the Canadian legal tradition, the right to silence is a subset of the larger
principle against self-incrimination. It is closely related to the rules governing

49
R. v. Henry, [2005] 3 S.C.R. 609 at paragraph 2
50
R v. Henry, [2005] 3 S.C.R. 609 22; Dubois v. The Queen, [1985] 2 S.C.R. 350 at 358
51
Henry, supra at paragraph 22; R. v. Nedelcu, 2012 SCC 59 at paragraph 7)
52
R v Sinclair, 2010 SCC 35 at para 173, R v Hebert, [1990] SCJ No 64 at para 80.

166
confessions and is also enshrined under Section 7 of the Canadian Charter of Rights and
Freedoms.

The rights against self-incrimination had existed in Canadian law even before the
Charter, but these applied to cases in which an individual might incriminate him or
herself while giving testimony in another person's trial. Since the enactment of the
Charter, the right has been extended in case law in regard to retrials, to exclude from
one's retrial self-incriminating evidence if it had been obtained during cross examination
in the last trial53. Though this Section serves a similar purpose as the Fifth Amendment to
the United States Constitution, but does not provide witnesses the same opportunity to
excuse themselves from testifying. It was in R. v. Nedelcu54, a majority of the Supreme
Court of Canada found that the prosecution in a criminal trial could use prior inconsistent
testimony from a civil trial to impeach an accused person's credibility.

5.7. Right against self-incrimination in Canada Russia

Under the Russian Constitution55 under Clause 1 of the Article 5156 grants
everyone the right to not witness against either themselves or against their spouses and
close relatives. As the decision whether or not an answer to a particular question would
lead to self-incrimination is left to the discretion of the person being questioned, this
clause allows to remain silent at any time. Again Article 47 of the CCP provide that the
accused has the right to give evidence, not an obligation that means he may deny giving
it. Article 173 of the CCP deals that if the accused refuses to give evidence, the
investigator should note it. Article

53
Morton, F.L. and Rainer Knopff. The Charter Revolution & the Court Party. Toronto: Broadview
Press, 2000, page 47.
54
R. v. Nedelcu, 2012 SCC 59
55
The present Constitution of the Russian Federation pronounced was adopted by national referendum
on December 12, 1993. Russia's constitution came into force on December 25, 1993.
56
Article 51 (1) Nobody shall be obliged to testify against himself, his (her) spouse or close relatives,
the range of whom shall be determined by federal law.

167
5.8. Right against self-incrimination in Pakistan

Under Pakistan Constitution, Article: 13 Protection against double punishment

and self-incrimination, Article provide for protection against double punishment and self
incrimination.- According to the constitutional mandate, no person-(a) shall be
prosecuted or punished for the same offence more than once; or (b) shall, when accused
of an offence, be compelled to be a witness against himself.

5.9. Right against self-incrimination in Bangladesh

Protection against self-incrimination is available under Bangladesh Constitution.

Clause (4) of Article 35 provides that “No person accused of any offence shall be
compelled to be a witness against himself.” In other words, this Article prohibits all kinds
of compulsions to make a person accused of an offence a witness against himself.

5.10. Right against self-incrimination in India

In India, so far as the right against self-incrimination is concerned, the concept

has discussion in the Constituent Assembly. It is the prevailing situation that compelling
persons to incriminate themselves is forbidden in most common law countries, usually by
means of guaranteeing rights against self-incrimination in a constitution or other basic
text. In India, we have Article 20(3), guaranteeing that "no person accused of an offence
shall be compelled to be a witness against himself".

Before the framing and enforcement of the Constitution of India, ensuring

prohibition against ‘self-incrimination’ by its Article 20(3), the resembling provision
under Section 342 of Code of Criminal Procedure and before the enactment and
enforcement of the Code of Criminal Procedure, 1898, such provisions were in existence
under Section 3 of Act, 15 of 1852 were in operation It recognised that an accused in a
criminal proceeding was not a competent or compellable witness to give evidence for or
against himself; but it was modified in 1855 by section 32 of Act 2 of 1855 which made
him compellable to answer even incriminating questions, but kept him immune from
arrest and prosecution on the basis of such evidence except a presumption for giving a
false evidence. This situation still continues under section 132 of the Indian Evidence

168
Act, 182. Section 130 of the same Act, protects a suitor from producing a document but it
is not certain whether it applies to an accused or not.

The position relating to documents in India is that of the common law in England.
Sections 203 and 204 of the Criminal Procedure Code, 1861, provided that no oath shall
be administered to an accused and the Magistrate was invested with discretion to examine
an accused. The provision of Section 3 of Act 15 of 1852 was replaced by Evidence Act
No. 1 of 1872. Section 250 of the Criminal Procedure Code, 1872 compulsorily provided
for a general questioning of the accused after the prosecution witnesses had been
examined and section 345 of this code prohibited the administration of oath to a person
accused of an offence. These provisions were later provided in section 342 of the
Criminal Procedure Code, 1898, and are now retained by Section 313 of the Code of
Criminal Procedure, 1973. Section 315(1) of the new Code reproduces the provisions of
section 342-A of the earlier one57.

The present Article 20(3) in the Constitution of India 1950 featured as Draft
Article 14 during the debates in the Constituent Assembly. This was different though
from the initial draft Article prepared by the Fundamental Rights Sub-committee which
was sent to the Advisory Committee. The first draft had only two sub-clauses and the
second one read "No person shall be tried for the same offence more than once nor be
compelled in any criminal case to be a witness against himself." The inspiration from the
self-incrimination is the clause in the Fifth Amendment to the United States' Constitution.
The Amendment reads: "no person ... shall be compelled in any criminal case to be a
witness against himself". When the clause went to the Drafting Committee, it was
decided to split up the clause for clarity. There were also changes in the language, and the
text became no person accused of any offence. Considering the Assembly Debates, The
Constitutional Assembly does not get much clarity on the issue either. The common
refrain in the Assembly was the similarity of rights with protections available under the
ordinary criminal laws of the country at the time. The possibility of statutory protections
being amended is what seems to have provided the rationale behind creating Article 20.

57
Section 7 of the Prevention of Corruption Act, 1947 has, also, made the accused a competent witness
on his application only in respect of the offences under that Act.

169
 On the judicial appreciation of the doctrine of innocence and presumption of
innocence of an accused person is a matter of law of evidence. The burden of proof is
thrown upon the prosecutor read with statutory exception to prove the prisoner’s guilt
beyond all imaginations of reasonable doubt. It gives the present day recognised right of
benefit of doubt to an individual accessed of a crime. The presumption is also connected
with false defence, failure of the accused to explain the circumstances adverse to him,
testimonial compulsion, coerced admission and coniferous, mens-rea, circumstantial
evidence and the strict construction of the statutes relating to the crimes, criminals,
punishment, procedure and the like. In practice, the presumption warrants the search for
independent evidence. But the apex courts appreciated the phase benefit of doubt in the
absence of independent evidence where the accused was convicted and sentenced to the
extreme penalty of death on the basis of uncorroborated evidence of the inmates of the
deceased person’s family when the evidence of other independent witnesses could have
been adduced58.

The Article 20 of the constitution of India is one of the pillars of fundamental

rights guaranteed by the Constitution of India. It mainly deals with protection of certain
rights in case of conviction for offences. When an individual as well as corporations are
accused of crimes, the provisions of Article 20 safeguard their rights. The striking feature
of the Article 20 is that it can’t be suspended during an emergency period. The Article
has set certain limitations on the legislative powers of the Union and State legislatures.

The clause (1) of Article 20 protects individuals against ex post facto legislation,
which means no individual can be convicted for actions that were committed before the
enactment of the law. That means, when a legislature declares an act to be an offence or
provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially
affect the individuals who have committed such acts prior to the enactment of that law.

Under the settled law, the doctrine of ‘presumption of innocence’ confers valuable
privileges on the accused, and thus he is not bound to confess guilt and to answer any
question(s) and can keep his lips sealed placing his reliance on the presumption of

58
Ram Lakhan v. State ofUP., AIR 1977 S.C. 1936.

170
innocence59. He needs not to lead any evidence in defence. He cannot be compelled to be
witness against himself, unless he himself voluntarily chooses in writing, and no oath can
be administered to him60. The accused shall not render him liable to any punishment for
his refusal to answer questions put to him by the court or for his false answers to the
questions; but the court may draw an inference from his refusal or answers as it deems fit.
The accused can not be convicted on his involuntary confession extorted from him by
using third degree methods of torture, threat to torture and inducement etc.

Article 20 (2) deals with Immunity from Double Punishment - The Constitution of
India prohibits double punishment for the same offence. That is reflection in the clause
(2) of Article 20 safeguards an individual from facing multiple punishments or successive
criminal proceedings for the same crime. According to this clause, no person shall be
prosecuted and punished for the same offence more than once. Thus, if someone has been
put on trial and punished in a previous proceeding of an offence, he can’t be prosecuted
and punished for the same proceedings of an offence again in subsequent proceeding. If
any law provides for the double punishment, it will be considered void. But however,
though Article 20 disapproves of the doctrine of ‘Double Jeopardy’, it does not give
immunity from proceedings before a court of law or tribunal. Hence, a public servant
who has been punished for an offence in a court of law may yet be subjected to
departmental proceedings for the same offence.

Article 20 (3) is one of the core fundamental rights provision. Article deals with
Immunity from Self-Incrimination. This immunity from self-incrimination is conferred in
the Article 20(3) of the constitution which states that the accused can never be compelled
to be a witness against himself. In short, no individual can be forced to accuse himself.

Article 20(3) provides that no person accused of any offence shall be compelled
to be a witness against himself. Thus Article 20(3) embodies the general principles of
English and American jurisprudence that no one shall be compelled to give testimony
which may expose him to prosecution for crime. The cardinal principle of criminal law
which is really the bed rock of English jurisprudence is that an accused must be presumed

59
1953 Cri. L.J. 154 (S.C.), Millder v. Minister of Pensions (1947), 2 All, E.R. 273
60
Section 313(2), Cr.P.C. 1973; Section 342(4), Cr. P.C., 1898.

171
to be innocent till the contrary is proved. It is the duty of the prosecution to prove the
offence. The accused need not make any admission or statement against hisown free will.
The fundamental rule of criminal jurisprudence against self incrimination has been raised
to a rule of constitutional law in Article 20(3).

The doctrine of prohibition against self incriminatory statement(s) prevailing in

the United Kingdom and celebrated in the united states of America has never been
accepted in India as such61, Article 20(3) of the Constitution of India has been construed
by the highest Court of the land upholding that it means that an accused can not be
compelled to disclosed documents which are incriminatory and based on his
knowledge62. However, a person who voluntarily answers questions from the witness box
waives the privilege under Article 20(3), which is against being compelled to be a
witness against himself because he is-then not a witness against himself but against
others63.

Therefore, In order to claim the benefit of the guarantee under Article 20(3)
against testimonial compulsion, it must be shown, firstly, the person who made the
statement was “accused of any offence”, secondly that he made that statement under
compulsion. The phrase “accused of any offence” has been the subject of several
decisions of the supreme court and it is now well settled that only a person against whom
a formal accusation relating to the commission of an offence has been levelled which in
the normal course may result in this prosecution would fall within the ambit of Article
20(3)64.

The scope of this immunity been widened by the Supreme Court by interpreting
the word ‘witness’ as inclusive of both oral and documentary evidence. Hence, no person
can be compelled to furnish any kind of evidence, which is reasonably likely to support a
prosecution against him. This ‘Right to Silence’ is not called upon in case any object or
document is searched and seized from the possession of the accused. For the same reason,
the clause does not bar the medical examination of the accused or the obtaining of thumb-

61
State of Gujarat v. Shayam Lai, AIR 1965 SC 1251
62
State of Bombay v. Kathi Kalu Oghad, AIR 1961 S.C. 1808
63
L. Chorarie v. State of Maharashtra, AIR 1968 SC 938.
64
Veer a Ibrahim v. State ofMaharashtra, AIR 1976 SC 1167

172
impression or specimen signature from him.However, this immunity is only limited to
criminal proceedings.

During Constituent Assembly Debates, the present Article 20(3) in the

Constitution of India 1950 featured as Draft Article 14. This was different though from
the initial draft article prepared by the Fundamental Rights Subcommittee which was sent
to the Advisory Committee. The first draft had only two sub-clauses and the second one
read "No person shall be tried for the same offence more than once nor be compelled in
any criminal case to be a witness against himself."The inspiration from the self-
incrimination clause in the Fifth Amendment to the United States' Constitution is
apparent. The Amendment reads: "no person ... shall be compelled in any criminal case to
be a witness against himself" When the clause went to the Drafting Committee, it was
decided to split up the clause for clarity. There were also changes in the language, and the
text became no person accused of any offence65. The common refrain in the Assembly
was the similarity of rights with protections available under the ordinary criminal laws of
the country at the time. The possibility of statutory protections being amended is what
seems to have provided the rationale behind creating Article 20.

A number of judicial pronouncements, old and new, throw light on the nature and
scope of the privilege in India. In Subedar v. State66, the Allahabad High Court observed,

"The doctrine of immunity from self-incrimination is founded on the presumption

of innocence which characterises the English system of criminal justice, and a
fundamental principle H of that system of justice.... is that it is for the prosecution to
prove the guilt of the accused and that the latter need not make any statement if he does
not want to."

The court continued to observe that the rule laid down by Article 20(3) is
narrower than the Anglo-American rule, since the privilege has been kept confined to
persons accused of any offence, the term ‘offence' being defined by section 3(38) of the
General Clauses Act. Further held that witnesses in India have been left untouched by the

65
B. Shiva Rao, The Making of India's Constitution, Considering the Assembly Debates
66
Subedar v. State, A.I.R. 1957 All. 396

173
constitution and continue to be governed by Section 132 and other provisions of the
Evidence Act67. Article 20(3) applies only to persons who are already accused of an
"offence" at the time of making deposition or tendering evidence68, whereas section 132
of the Evidence Act applies to the witnesses against whom charges may be pending or
may be levelled in the future. Section 132 of the Evidence Act only says that a witness is
not excused from answering any question as to any matter relevant to the matter in issue
for the reason that such answer may incriminate him or expose him to a penalty though
he is protected from any arrest or prosecution on account of such answer which he is
compelled to give.

Therefore, before Article 20(3) is brought into play these conditions are to be
satisfied:

1) that at the time of making deposition or tendering evidence there was a formal
accusation of the commission of an offence against him;

2) that he was compelled to be a witness against himself and

3) that the evidence which was intended to be used against him was
incriminatory in nature69.

In this context it requires necessity to examine the meaning of the phrase "to be a
witness" in Article 20(3). The Supreme Court held in M. P. Sharma's70 case that the
protection afforded to an accused under Article 20(3) in so far as it is related to the phrase
"to be a witness' is not merely in respect of testimonial compulsion in the court room but

67
Section 132 of Evidence Act - Witness not excused from answering on ground that answer will
criminate.—A witness shall not be excused from answering any question as to any matter relevant to
the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer
to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it
will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any
kind: (Proviso) —Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except
a prosecution for giving false evidence by such answer.
68
M.P. Sharma v. Sathish Chandra, A. I. R. 1954. S.C. 300.
69
Mohammed Dastagir v. State of Madras A.T.R. 1960 S.C. 756, Subedar v. State, AIR, 1957, All.
396 397.
70
Ibid note no 258

174
means furnishing evidence, and such evidence can be furnished by oral evidence, or by
producing documents or by making intelligible gestures as in the case of dumb w:tnesses.
In Bombay v. Kathi Kalu Oghad71 the court was not prepared for a wider interpretation.
The majority said,

From the very initial years of coming in to force of the Constitution, a certain
ambiguity on the question of what evidence was accorded protection, and apparent
conflicts between Article 20(3) and provisions of the Indian Evidence Act, 1872 have
prevailed. This resulted in judgements with apparent imbalance between the right against
self-incrimination in Article 20(3) and the necessity to facilitate collection of evidence by
investigating trial agencies. These judgements were referred to the Supreme Court, which
clubbed them and referred them to an eleven-judge bench. The resultant judgement is the
landmark judgment of State of Bombay v. Kathi Kalu Oghad72 which has made a defining
contribution to the case law on the matter as it stands today.

Conveying of information based upon the personal knowledge of the accused

person pursuant to the production of the document may be self-incrimination but not the
mere mechanical process of producing the document in his possession and personal
knowledge. On this point reference may be made to the 'observation of the Supreme
Court in Parameswari Devi v. State73, where the Supreme Court had to consider the
scope of Section 94(1) of the 1898 Code, in relation to Section 13974 of the Evidence Act.

Specimen handwritings of the accused had been taken during investigation while
the accused was in police custody. These have been excluded from consideration by the
Courts below on the ground that obtaining of such signatures offended Art. 20 (3)75 the
courts holding that an element of compulsion was implicit in the accused being in the
police custody at the time the handwritings were taken. The mere fact that the accused

71
Supra note no 62.
72
Ibid
73
Parameswari Devi v. State, A.I.R. 1977 S.C. 403
74
Section 139 of Indian Evidence Act - Cross-examination of person called to produce a document.—
A person summoned to produce a document does not become a witness by the mere fact that he
produces it, and cannot be cross-examined unless and until he is called as a witness.
75
Article 20 )3) Article 20(3) in The Constitution Of India, (3) No person accused of any offence shall
be compelled to be a witness against himself.

175
was in police custody does not by itself imply that compulsion was used for obtaining the
specimen handwritings. Even if there is compulsion, it does not amount to testimonial
compulsion. Action taken under Sections 9476 and 9677 Criminal Procedure Code to
secure production of documents though search warrants, does not amount to compulsion
within the meaning of Art. 20(3). Section 73 of Evidence Act78 also contemplates the
obtaining of specimen handwriting. If a person gives the specimen handwriting
voluntarily, it cannot be said that he was compelled to give it. If the police merely
requests the accused, then it does not amount to compulsion, but if it directs the accused
to write and if physical force is used or if there is any show of force or threat, then alone
would it be compulsion. Inducement is not compulsion.

In State of Bombay v. Kathi Kalu Oghad79 a Bench of the Supreme Court

consisting of eleven judges held that: “It is well established that clause (3) of Article 20 is
directed against self-incrimination by the accused person. Self-incrimination must mean
conveying information based upon personal knowledge of the person giving the
information and cannot include merely the mechanical process of producing documents
in court which may throw a light on any of the points in the controversy, but which do
not contain any statement of the accused based on his personal knowledge.” The third
component of Article 20 (3) is that it is a prohibition only against the compulsion of the
accused to give evidence against himself.

Applicability of Article 20(3) Article 20(3) of our Constitution uses the words
accused of an offence, it is obvious as a witness in any legal proceedings80, civil or
criminal, even though prosecution may be pending against him for some offence in

76
Section 94 deals with search of place suspected to contain stolen property, forged documents, etc.
77
Section 96 deals with Application to High Court to set aside declaration of forfeiture.
78
Section 73 - Comparison of signature, writing or seal with others admitted or proved.—In order to
ascertain whether a signature, writing or seal is that of the person by whom it purports to have been
written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to
have been written or made by that person may be compared with the one which is to be proved,
although that signature, writing, or seal has not been produced or proved for any other purpose. The
Court may direct any person present in Court to write any words or figures for the purpose of
enabling the Court to compare the words or figures so written with any words or figures alleged to
have been written by such person. 1[This section applies also, with any necessary modifications, to
finger-impressions.
79
Supra note no 62.
80
Laxmipaty v. State of Maharashtra, AIR 1968 SC 931.

176
another proceeding81 or such witness may be an accomplice in the commission of the
offence which is being tried in that very proceeding under section 306 Cr. P. C. 197382.

The following are the essential ingredients of Article 20(3) of the Constitution of
India. The present clause 3 of Article 20 follows the language of the Fifth Amendment to
the American Constitution83, but the rule laid down in our Constitution is narrow than the
American rule. The guarantee contained in our constitution gives protection to:

(i) A person accused of an offence,

(ii) Against compulsion to be a witness.

(iii) Against himself.

A person accused of an offence In order to attract the immunity from self-

incrimination, the person compelled to be a witness against himself, must have filled the
character of an accused person at the time of compulsion. The term “accused of an
offence” connotes necessarily a proceedings in a criminal court under the Criminal
Procedure Code for an act punishable under the Indian Penal Code or any special or local
law. The person must stand as an accused in that very proceedings where he is compelled
to testify84. For invoking the constitutional right against testimonial compulsion
guaranteed under Art. 20(3) it must appear that a formal accusation has been made
against the party pleading the guarantee and that it relates to the commission of an
offence which in the normal course may result in prosecution85.

The Hon’ble Supreme Court in Balkishan v. State of Maharashtra,86 held that

determination of the issue whether a person is said to be accused of any offence will
depend on whether at the time when the person made the ,self-incriminatory statement, a
formal accusation of the commission of an offence had been made against him.

81
Phansalkar v. State of Maharashtra, (1974) Cri.L.J. 995.
82
Section 306 deals with the provisions relating to tender of pardon to accomplice.
83
American Constitution Fifth Amendment “No person..... shall be compelled in any criminal case to
be a witness against himself....”
84
Narayan Lal v. Manek, AIR 1961 SC. 291
85
Ibid
86
Balkishan v. State of Maharashtra, 1980 Cri. L.J. 1424 (S.C.)

177
In M.P. Sharma v. Satish Chandra87, Jagannadhadas J, emphasised that “to be a witness”
is nothing more than to furnish evidence, and such evidence can be furnished through the
lips or by production of a thing or a document or in the other modes. In the instant case,
the Supreme Court made a distinction between a person being compelled to do a rational
act and something being obtained from him without involving any volitional act on his
part and held that the immunity offered by Art. 20(3) is confined to the former case and is
not available in the latter. In M.P. Sharma v. Satish,88 Supreme Court formulated a
proposition decisions, is that the protection is available to:

(a) Person against whom a formal accusation has been made;

(b) Of such accusation relates to the commission of an offence which in the normal
course may result in prosecution.

Thus, the above position in M.P. Sharma v. Satish Chandra89 that immunity
extends to against being compelled to furnish any kind of evidence which is reasonably
likely to support a prosecution case against him has been narrowed down in State of
Bombay v. Kathi Kalu Oughad90 In M.P. Sharma, Justice Jagannadhadas had said that,
‘the right against self-incrimination would extend to any compelled production of
evidentiary documents which are ‘reasonably’ likely to support a prosecution against the
accused. The following proposition of law emerge out of the majority judgement
delivered by Sinha C.J.:

(1) “To be a witness” is not equivalent to “furnishing evidence in its widest

significance, that is to say, including merely making of oral or written statement
but also production of documents or giving materials which may be relevant at a
trial to determine the guilt or innocence of the accused.

(2) “To be a witness” means imparting knowledge in respect of relevant facts by oral
statement or a statement in writing made or given in a court or otherwise.

87
Supra note no 68.
88
Ibid
89
Ibid
90
Supra note no 62.

178
(3) “The expression “to be witness” has a wide meaning than its grammatical sense. It
means bearing testimony in court or out of court by a person accused of an
offence orally or in writing.

(4) Giving thumb impression or impressions of foot or palm or fingers or specimen

writing or showing part of the body by way of identification are not included in
the expression “to be a witness”.

(5) The fact that the accused was in police custody at the time when the statement in
question was made, would not, by itself, as a proposition of law, lead to inference
that he was compelled to make the statement.

In Kathu Kalu's case referred to above, the majority held that to be a 'witness' may
be equivalent to furnishing evidence in the sense of making oral or written statements but
in the larger sense of the expression giving of thumb impression or impression of palm or
foot or finger or specimen writing or exposing a part of body by an accused person for
purpose of identification are not included in the expression 'to be a witness'. The
Constitution makers may have intended to protect the accused person from the hazards of
self-incrimination in the light of English Law on the subject. They could not have
intended to put obstacles in the way of efficient and effective investigation of the crime
and bringing the criminals to justice. It is as much necessary to protect the accused person
from being compelled to incriminate himself as to arm the agents of law and law courts
with legitimate powers to bring offenders to justice. The court held that giving of finger
impression or specimen signature or handwriting strictly speaking is not to be a witness.
To be a witness means imparting knowledge in respect of relevant facts by means of oral
statements or in writing by a person who has personal knowledge of the facts to be
communicated to a court or to person holding an enquiry or investigation. A person is
said to be a witness to certain state of facts which has to be determined by court or
authority authorised to come to a decision by testifying to what he has seen, or something
he has heard which is capable of being heard and is not hit by the rule excluding hearsay,
or giving his opinion as expert in respect of matters in controversy. It was further
observed that when an accused person is called upon by any court or other authority
holding an investigation to give his finger impression or signature or a specimen of his

179
handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The
giving of a personal testimony must depend upon his volition. He can make any kind of
statement or may refuse to make any statement. But his finger impressions or his
handwriting in spite of the efforts at concealing the true nature of it by dissimulation
cannot change their intrinsic character.

Thus, the giving of the finger impressions or the specimen writing or the
signatures by an accused person though it may amount to furnishing evidence in the
larger sense is not included within the expression 'to be a witness'. Regarding self
incrimination, it was said that the same must mean conveying information based upon
personal knowledge of the person giving information and can not include merely the
mechanical process of producing documents in court which may throw light on any of the
points in controversy but which do not contain any statement of accused based on his
personal knowledge.

Compulsion is an essential ingredient of this clause. A mere voluntary confession

of guilt by an accused person or any statement obtained from him without the use of any
compulsion is not inadmissible in evidence against him at the enquiry or trial against
him91.

Therefore, giving thumb impression or impression of foot or palm or finger or specimen

writing or showing parts of the body by way of identification are not included in the
expression “to be witness” compelling the accused to produce himself for medical
examination92 or for taking of blood sample or specimen of hair93 or to obtain his
specimen handwriting94 or photographs and measurements95 or recovery of blood stained
clothes96 or other articles97 from him do not amount to testimonial compulsion.

Althouth, compulsion is an essential ingredient of the clause 3 of Article 20 which

does not, accordingly, prohibit the admission of confession which is made without any

91
Pokhar Singh v. State, AIR 1958 Punj. 294.
92
Jamshed v. State ofU.P., 1976 Cri. L.J. 1680
93
Mohipal v. State ofRajasthan, 1971 Cri. L.J. 1405.
94
Supra note no 62.
95
Ram Swamp v. State, AIR 1958 All. 119.
96
In re Palani, AIR 1955 Mad. 495.
97
Mohd. Dustagir v. State ofMadras, AIR 1960 SC 756.

180
inducement, threat or promise even though it may be subsequently retracted98. Again,
when the provision of law a person is, under a legal sanction, bound to give oral or
documentary evidence it is obvious that he is ‘compelled to be a witness’ liability to be
punished for contempt of court is legal compulsion99. “Compulsion” in clause 3 of Article
20 of the Constitution means duress and unless duress was exercised against the accused
he cannot be held to have been compelled to a witness against himself100.

In Selvi v State of Karnataka101, decided by three judges, it considered whether an

accused could be compelled to undergo either brain mapping, polygraph tests, or narco-
analysis. Narcoanalysis102, Brain Electrical Activation Profile (BEAP), Functional
Magnetic Resonance Imaging (FMRI) and Polygraph are those boons of modern medical
science which are being followed as an alternative to third degree to tap out information
that can be used as evidence out of the accused. However there are some standards set by
the constitution which anyone gathering evidence has to adhere to and the actions
mentioned above manages to violate all of these standards and could be easily held
unconstitutional. The three judges held that compelling a person accused to undergo any
of these would violate the constitutional right under Article 20(3).

Self-incrimination has been extensively discussed in the case of Nandini Satpathy

v. P.L Dani103. In this case, the appellant, a former Chief Minister of Orissa was directed
to appear at Vigilance Police Station, for being examined in connection to a case
registered against her under the Prevention of Corruption Act, 1947 and under S. 161/165
and 120-B and 109 of The Indian Penal Code, 1860. Based on this an investigation was
started against her and she was interrogated with long list of questions given to her in
writing. She denied to answer and claimed protection under Article 20(3). The Supreme
Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary

98
Kalawati v. State ofH.P., (1953) SCR 546.
99
R.K Dalmiav. Delhi Administration, AIR 1962 SC 1821.
100
Supra note no 62.
101
Selvi v State of Karnataka [(2010) 7 SCC 263].
102
Narcoanalysisis method of psychological investigation in which the conscious orunconscious
unwillingnesof a subject to express memories or feelingsis diminished by the use of a barbiturate
drug.
103
Nandini Satpathy v. P.L Dani, AIR 1978 SC 1025

181
police harassment and hence it extends to the stage of police investigation apart from the
trial procedure.

In V.S Kuttan Pillai v. Ramakrishnan104, the Supreme Court held that search of
the premises occupied by the accused without the accused being compelled to be a party
to such a search would not be violative of the constitutional guarantee enshrined in
Article 20(3).

In settled judgments, the court held that self-incrimination in context of Article

20(3) only means conveying information based upon personal knowledge of the person
giving information. But where an accused is compelled to produce a document in his
possession which is not based on the personal knowledge of the accused, in such a case
there is no violation of Article 20(3).

5.10.1 The Right to Silence

The right to silence is a legal principle which guarantees any individual the right
to refuse to answer questions from law enforcement officers or court officials. This right
is a legal right recognized, explicitly or by convention, in many of the world's legal
systems. This right covers a number of issues centered on the right of the accused or the
defendant to refuse to comment or provide an answer when questioned, either prior to or
during legal proceedings in a court of law. This right can be exercises to avoid self-
incrimination or the right to remain silent when questioned. The right usually includes the
provision that adverse comments or inferences cannot be made by the judge or jury
regarding the refusal by a defendant to answer questions before or during a trial, hearing
or any other legal proceeding. In the United States, informing suspects of their right to
remain silent and of the consequences for giving up that right forms a key part of the
Miranda warning105.

104
V.S Kuttan Pillai v. Ramakrishnan, AIR1980 SC 185
105
The Miranda warning is part of a preventive criminal procedure rule that law enforcement are
required to administer to protect an individual who is in custody and subject to direct questioning or
its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-
incrimination.

182
 The Law Commission of India 180th Report on Article 20(3) of The Constitution
of India and the right to silence, May 9, 2002.

The Law Commission had taken up the above said subject, suo motu, in view of
some developments in U.K. and other countries diluting the right to silence of the
accused at the stage of interrogation and in criminal trial proceedings. In India, the right
against self-incrimination is incorporated in clause (3) of article 20 of the Constitution.
Further, after Maneka Gandhi v. Union of India106, Article 21 of the Constitution of India
requires a fair, just and equitable procedure to be followed in criminal cases. In the
present Report, an analysis and a comparative study of 'right to silence' is made based on
recently decided English and European Court cases and the position currently obtaining
in various countries like U.S.A., Australia, Canada, U.K. and China. The
recommendation is to emphasize that no change in the law relating to right to silence of
the accused is necessary. The right is protected by Articles 20 (3) and 21 of the
Constitution and Sections 161 (2)107, 313 (3)108 and 315109 of the Code of Criminal
Procedure, 1973. If the changes made in U.K. or those proposed in Australia are
introduced in India, such changes will be ultra virus of Articles 20 (3) and 21 of the
Constitution of India. The Law Commission has recommended that no dilution of the
existing right to silence need be made nor can be made.

The Law commission held that the law in India appears to be same as in USA and
Canada. In view of the provisions of clause (3) of Article 20 and the requirement of a fair
procedure under Article 21, and the provisions of ICCPR to which India is a party and
taking into account the problems faced by the Courts in UK, we are firmly of the view
that it will not only be impractical to introduce the changes which have been made in UK
but any such changes will be contrary to the constitutional protections referred to above.
In fact, the changes brought about in the Criminal Procedure Code, 1973 leaving out the

106
Maneka Gandhi v. Union Of India, (1978 (1) SCC 248),
107
Section 161- Examination of witnesses by police. (2) Such person shall be bound to answer truly all
questions relating to such case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
108
Section 313 - Power to examine the accused, the accused shall not render himself liable to
punishment by refusing to answer such questions, or by giving false answers to them.
109
Section 315 deals with provisions relating tom accused person to be competent witness.

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certain provisions which were there in 1898 Code, appear to have been the result of the
provisions of clause (3) of Article 20 and Article 21 of our Constitution.

The Law Commission has reviewed the law in other countries as well as in India
for the purpose of examining whether any amendments are necessary in the Code of
Criminal Procedure, 1973. On a review, the Commission found that no changes in the
law relating to silence of the accused are necessary and if made, they will be ultra virus of
Article 20(3) and Article 21 of the Constitution of India.

In Smt. Selvi v. State of Karnataka, the constitutionality of narco-analysis, lie

detector test and analysis of brain waves was questioned. The three judge bench ruled
that the compulsory administration of such tests should be banned as forcible intrusion
into the mind of the accused not only violated Article 20(3) but also intruded on the
privacy and liberty of an individual, thus violating Article 21 of the Indian Constitution.
In the instant case Justice Sinha’ opinion stated in The State of Bombay v. Kathi Kalu
Oghad case is correct since that if the mind of the subject had been conditioned such that
a confession was involuntary, it would be considered coercion, and hence in violation of
Article 20(3).

Thus, the right against self-incrimination is recognized in India as an inherent

right enshrined in Article 20(3) of the Constitution of India and by virtue of Section
161(2) of the Code of Criminal Procedure, 1973.2 These two legal provisions essentially
cover the same subject matter, wherein they state that a person is not liable to answer
questions, which might result in his incrimination. This right was recognized and its
nuances were discussed and reiterated in the landmark case of Nandini Satpathy v. P. L.
Dani110.

This case is one of the most popularly cited cases when it comes to self-
incrimination and right to be silent. But this case and the current standing of law on the
subject matter have certain flaws in the principles that have been developed therein. In
this case the appellant is Mrs. Nandini Satpathy who was the former Chief Minister of

110
Supra note no 103.

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Orissa, had been called to the Vigilance Police Station, Cuttack in connection with the
case registered against her and her sons under Prevention of Corruption Act. An FIR had
been filed against these persons on the grounds of acquisition of disproportionate assets
during the time of the public position she was in. Regarding this she was to being
examined by way of a questionnaire that was handed to her, which she was supposed to
answer orally. She refused to answer certain questions and remained silent regarding
them, since they were self-incriminatory in nature.

Upon her refusal she was charged under Section 179111 of the Indian Penal Code,
1860 6 that deals with refusal to answer a public servant on the subject matter. She
further challenged herself being booked under Section 179 of the I.P.C. on the ground
that she had a right to remain silent under Section 161(2)112 of the Cr.P.C. and Article
20(3) of the Constitution. She initially approached the High Court, which did not hold in
her favour and did not consider her to have a right to remain silent, upon which she
appealed to the Supreme Court. The Nandini Satpathy case is essentially a constitutional
law case wherein certain issues pertaining to Criminal Procedure have been discussed.
Justice Krishna Iyer, who gave the majority judgment, has discussed ten issues, of which
three were regarding Criminal Procedure. The primary issue discussed was regarding the
principle laid down by Section 161(2) of Cr.P.C., and to what extent might a person be
justified in not answering a question on the ground that it is self-incriminatory in nature.
Second issue discussed is whether Section 161(2) applies only to a witness or does it also
extend to include an accused person, who can claim immunity under Article 20(3) of the
Constitution. And finally the last issue is whether there is a contradiction between Section
161(2) of Cr.P.C. and Section 179 of the IPC.

A compulsory administration of a warning about a person’s right to silence during

custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights,

111
Section 179. Offence triable where act is done or consequence ensues. When an act is an offence by
reason of anything which has been done and of a consequence which has ensued, the offence may be
inquired into or tried by a Court within whose local jurisdiction such thing has been done or such
consequence has ensued.
112
Section 161. Examination of witnesses by police, (2) Such person shall be bound to answer truly all
questions relating to such case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or forfeiture

185
has become a pervasive feature in the U.S. criminal justice system113. The absence of
such a warning and voluntary waiver leads to the presumption of compulsion with regard
to the custodial statements, thereby rendering them inadmissible as evidence. This is in
stark contrast with the position in India where there is no presumption of compulsion in
respect of custodial statement except when proved by the accused.

It was in Nandini Satpathi v. P.L. Dhani114, Justice V.R. Krishna Iyer has
formulated far-reaching principles on right against self-incrimination in India. The
following are important principles evolved on right to silence:

1. Principle 1.“A person while being examined under § 161 of the Cr. P.C. is not
required to answer those questions that have a tendency to self-incriminate.”

2. Principle 2 “Protection under § 161(2) of the Cr. P.C. and Article 20(3) of the
Constitution is granted to witnesses as well as accused.

3 Principle 3: “There is no contradiction between § 161(2) of the Cr.P.C. and

Section 179 of the IPC, they both are in fact in consonance.”

5.11 Conclusion:

To conclude on the right against self-incrimination, the privilege against self-

incrimination arose out of a desire to safeguard human liberty so as to guard against an
innocent person being punished. Its origin in common law can be traced to the protests
against the inquisitorial methods of interrogating accused persons, which existed for a
long time in England. The object of the privilege is to promote extrinsic sources of proof
in criminal cases and to discourage intrinsic evidence from criminals. But this privileges
should not go to the extent of defeating justice and of preventing the legitimate sources of
obtaining truth. A balance has to be struck between the interest of the accused persons
who may turn out to be innocent, and the interest of the State and the public in bringing
the criminals to charge for the offence committed and bring to book. The immunity will
not be available to a person against whom no accusation has been made when a

113
Miranda v. Arizona, 384 U.S. 436 (1966).
114
Supra note no 103.

186
compulsory process or notice is issued directing him under pain or penalty to produce a
document though ultimately it may incriminate him for the commission of an offence.
The Constitution of India explicitly empowers the Parliament to enact laws providing for
preventive detention for instances that involve, “the Security of a State, maintenance of
public order, or maintenance of supplies and services essential to the community115.” The
Supreme Court held in the mid 1970’s that the presidential order under Article 359 of the
Constitution allowed the suspension of certain fundamental rights, including self-
incrimination116. Experiencing the hardships, the Constitution was later amended to limit
the ability of the President to suspend fundamental freedoms under Article 359, which
stated that the fundamental rights of Articles 20 and 21 of the Constitution are not to be
suspended even in a state of emergency117.

Under Indian constitution, the protection against self-incrimination is limited to

furnishing evidence in the sense of making oral or written statement, or by way of
gestures or signs, but not in the larger sense. The privilege in India is limited to persons
who are already accused in a criminal case and not to those witnesses who may stand the
peril of prosecution in future. In the latter case they are protected from prosecution
merely on the basis of such statement, which they are compelled to make in answer to
questions from the prosecution side. Therefore, it means the privilege is taken away the
moment the fear of prosecution is taken away.

In the next chapter, the researcher has extensively discussed Biometric Evidence -
Right to Privacy and Right against Incrimination - A Critical Analysis which is the main
work carried out by the researcher.

115
Derek P. Jinks, The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal
Liberty in India 22 MIJIL 311, 323 (2001)
116
A.D.M. Jobalpur v. Shivakant Shukla, A.I.R. 1976 S.C. 1207; Union of India v. Bhanudas, A.I.R.
1976 SC 1027, 1029
117
Constitution (Forty-Fourth) Amendment Act, 1978,

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 CHAPTER-VI

BIOMETRIC EVIDENCE VERSUS RIGHT TO PRIVACY

AND RIGHT AGAINST SELF- INCRIMINATION

In the present chapter, the researcher dealt with the impact of the use of Biometric
Evidence, with specific reference to Right to privacy and Right against Self-Incrimination
in detailed manner. However, in order to understand the importance of the problem,
review on existing laws on Right to privacy vis-à-vis right against self incrimination with
special reference to data protection and right to privacy in various countries of the world.
The study will concentrate on the role of biometric evidence and its effect on right to
privacy and right against self-incrimination. In this connection, as the biometric data of
more than 100 crores of people was stored in data bank with the newly devised Aadhar
ID card linkage, a special emphasis was made on Aadhar card linkage.

6.1.Introduction

Right to privacy is a fundamental human right recognized in the Universal

Declaration of Human Rights, the International Covenant on Civil and Political Rights,
and in many other international and regional treaties. Privacy underpins human dignity
and other values such as freedom of association and freedom of speech. It has become
one of the most important human rights issues of the Modern age. Almost all countries in
the world recognizes, right of privacy in their constitution. At a minimum, these
provisions include rights of inviolability of the home and secrecy of communications.
However, in many of the countries where privacy is not explicitly recognized in the
constitution, such as the United States (U.S.), Ireland and India, the Court have found that
right in other provisions.

6.2.Right To Privacy Under Human Rights Discourse

In many Countries, International agreements that recognize privacy rights such as

the International Covenant on Civil and Political Rights or the European Convention on
Human Rights were adopted into law. It was in during 1970s, countries of the world

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began adopting broad laws intended to protect individual privacy. Throughout the world,
there is a general movement towards adopting comprehensive privacy laws that set a
framework for protection.

Privacy has roots deep in history. The Bible has numerous references to privacy.
There was also substantive protection of privacy in early Hebrew culture, classical
Greece and ancient China. These protections mostly focused on the right to solitude.
Definitions of privacy vary widely according to context and environment. In the recent
past, with the increasing sophistication of information technology with its capacity to
collect, analyze and disseminate information on individuals introduced a sense of urgency
to the demand for privacy legislation. Again, new developments in medical research and
care, telecommunications, advanced transportation systems and financial transfers
dramatically increased the level of information generated by each individual. Computers
linked together by high-speed networks with advanced processing systems can create
comprehensive dossiers on any person without the need for a single central computer
system.

New technologies developed by the defense industry are spreading into law
enforcement, civilian agencies, and private companies1. In view of the recent
technological innovations and fast progress of information transfer, sharing, concern over
privacy violations are now greater than at any time in recent history. Under these
circumstances, the people throughout the world express fears about encroachment on
privacy, prompting an unprecedented number of nations to pass laws specifically
protecting the privacy of their citizens. Human rights groups are concerned that much of
this technology is being exported to developing countries that lack adequate protections2

In broad sense, all human rights are aspects of the right to privacy3. Privacy can
be defined as a fundamental though not an absolute human right. In this connection, it is
to be noted that the developments of communication technologies have been among the

1 Simon Davies, Re-engineering the Right to Privacy: How Privacy has been Transformed from a Right to a Commodity, in Technology and Privacy The
New Landscape 143
2 David Banisar and Simon Davis, Global Trends in Privacy Protection: An International Survey of Privacy, Data Protection, And Surveillance Laws And
Developments, https://poseidon01.ssrn.com/ delivery.php?I Retrieved on 31-7-2017
3 Fernando Volio, Legal Personality, Privacy and the Family, The International Bill of Rights, Henkin ed. 1981.

189
most spectacular in the recent years. These put major challenges for the protection of
human rights and, in particular, the right to privacy. These also raise crucial ethical issues
concerning the treatment, storing and access to information4. A more near viewpoints on
privacy as pronounced in the 1890s, future U.S. Supreme Court Justice Louis Brandeis
articulated a concept of privacy that urged that it was the individual's “right to be left
alone”. Brandeis argued that privacy was the most cherished of freedoms in a democracy,
and he was concerned that it should be reflected in the Constitution5.

The increased attention has drawn on the right of privacy increased in the 1960s
and 1970s with the advent of IT. The surveillance potential of powerful computer
systems prompted demands for specific rules governing the collection and handling of
personal information. In many countries, new Constitutions reflect this right. The genesis
of modern legislation in this area can be traced to the first data protection law in the
world enacted in the Land of House in Germany in 1970. This was followed by national
laws in Sweden (1973), the United States (1974), Germany (1977), and France (1978).

The United Nations General Assembly in its resolution on The Right to Privacy in
the Digital Age6 acknowledged that technological developments have enhanced states’
capacities to engage in surveillance that could breach Article 17. As General Assembly
resolution 68/167 recalled, International human rights Law provides the universal
framework against which any interference in individual privacy rights must be assessed.
The International Covenant on Civil and Political Rights, to date ratified by 167 States,
provides that no one shall be subjected to arbitrary or unlawful interference with his or
her privacy, family, home or correspondence, nor to unlawful attacks on his or her
honour and reputation. It further states that “Everyone has the right to the protection of
the law against such interference or attacks.” The General Assembly affirmed that the
rights held by people offline must also be protected online, and it called upon all States to
respect and protect the right to privacy in digital communication. The General Assembly
called on all States to review their procedures, practices and legislation related to

4 James Michael , Privacy and Human Rights: An International and Comparative Study, with Special Reference to Developments in Information
Technology, Dartmouth Publishing Company, 1994
5 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. REV. 193, 193-220 (1890).
6 In December 2013, the United Nations General Assembly adopted resolution 68/167, which expressed deep concern at the negative impact that
surveillance and interception of communications may have on human rights

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communications surveillance, interception and collection of personal data and
emphasized the need for States to ensure the full and effective implementation of their
obligations under international human rights law.

The expression of data protection in various declarations and laws varies in

degree. All of the declarations and laws require that personal information must be
obtained fairly and lawfully; used only for the original specified purpose, adequate,
relevant and not excessive to purpose; should be accurate and up to date; should be
accessible to the subject; kept secure; and destroyed after its purpose is completed.

Privacy protection has moved into the hands of individual users with the recent
development of commercially available technology-based systems. Users of the Internet
and of some physical applications can employ a range of programs and systems that will
ensure varying degrees of privacy and security of communications. These include
encryption, anonymous remailers, proxy servers, digital cash and smart cards. Further, a
question remains about security and trustworthiness of these systems. It is held that even
with the adoption of legal and other protections, violations of privacy remain a concern.
In many countries, laws have not kept up with the technology, leaving significant gaps in
privacy protections. It is a fact that there are widespread violations of laws relating to the
surveillance of communications, even in the most democratic of countries.

The Constitution of India does not expressly recognize the right to privacy.
However, the Supreme Court first recognized in 1964, that there is a right of privacy
implicit in the Constitution under Article 21 of the Constitution which states, “No person
shall be deprived of his life or personal liberty except according to procedure established
by law7.” There is also a right of privacy guaranteed by Indian laws. Unlawful attacks on
the honour and reputation of a person can invite an action in tort and/or criminal law8.
The Public Financial Institutions Act of 1993 codifies India's tradition of maintaining
confidentiality in bank transactions. However, National Policy on Information Security,

7
Kharak Singh v. State of UP, 1 SCR 332 (1964); also see R.C. Jain, National Human Rights
Commission, India, Indian Supreme Court on Right to Privacy, July, 1997.
8
As published in the UN, Human Rights Comm., Consideration of Reports Submitted by States
Parties under Article 40 of the Covenant, Third periodic reports of States parties due in 1992
Addendum -India/1, June 17, 1996.

191
Privacy and Data Protection Act for handling of computerized data has examined the
U.K. Data Protection Act as a model and recommended a number of cyber-laws
including ones on privacy and encryption. Based on this and also by examining the
suitability to Indian context, the Indian Information Technology Act, 2000 was enacted.
Wiretapping is regulated under the Indian Telegraph Act of 1885. An order for a tap can
be issued only by the Union Home Secretary or his counterparts in the States. A copy of
the order must be sent to a review committee and directed to be set up by the High Court.
Tapped phone calls are not accepted as primary evidence in Indian Courts.

With the expansion of scientific advancement and invention, if new electronic

gadgets, using biometric technology to identify and monitor people raises human rights
concerns. The implications of usage of biometrics are often associated with intrusions
into privacy. In biometric system, the personal and permanent nature of the physiological
features analyzed raising an inherent tension with privacy interests. In circumstances
where biometrics are applied in a surveillance context, concerns of Human-beings for
privacy naturally increase.

The term and technology Biometrics refers to a process of recording, measuring,

and analyzing a range of human physiological features. The scope of features to which
biometrics may be directed is “all encompassing, and includes appearance, behaviour,
and cognitive state9”. In species, certain physiological features are permanent, unique,
and universal. They are known as “biometric characteristics.” Those characteristics are
typically measured by a sensor array and stored on a database as a “template” and a
template enables to identify a person, or to verify a person's identity, at a subsequent
time. In an identity verification application, a person enrolls in the system, and his
identifying data are measured and recorded in a database or on a document. To confirm
the person’s identity later, his identifying data are measured again and compared with the
original. This is known as one-to-one matching. Biometric identification usually applies
to a situation where an organization needs to identify a person. The organization captures

9
H. Weschler, "Biometric security and privacy using smart identity management and interoperability:
Validation and vulnerabilities of various techniques", Rev. Policy Res., vol. 63, pp. 64, 2012

192
a biometric from that individual and then searches a biometric repository in an attempt to
correctly identify the person.

Chapter –II has dealt extensively on various types of Biometric Recognition

methods, the chapter was also discussed its pros and cons in practice.

In India, in the recent times, biometric identification project has been launched
and biometrics has been trending the popularity charts for quite a while, and analytics
brings an insider peek at this newly gravitating technology — that implies metrics related
to human characteristics. The various technologies for identification, now one come
across fingerprint scanning, face recognition, voice recognition, iris scan and more not
just recently but way back in 1950s or 60s in popular scientific movies like Star Trek.
While these caught our imaginations for quite long, it is remarkable as to how these
technologies have transcended from showbiz into the world of reality.

In India, Aadhaar is a 12-digit unique identity number issued to all Indian

residents based on their biometric and demographic data. Aadhaar card is essentially an
identification document issued by the UIDAI after it records and verifies every resident
Indian citizen’s details including biometric and demographic data. Aadhaar is not meant
to replace existing identification documents like PAN, passport, driving license etc.
However, it can be used as a single identification document. Banks, financial institutions
and telecom companies can also use it as a Know-Your-Customer (KYC) verification
mode and maintain profiles. The data is collected by the Unique Identification Authority
of India (UIDAI), a statutory authority established in January 2009 by the government of
India, under the jurisdiction of the Ministry of Electronics and Information Technology,
following the provisions of the Aadhaar (Targeted Delivery of Financial and other
Subsidies, benefits and services) Act, 2016.

The Aadhaar program is one of the technology success stories of India, and is an
initiative unparalleled in scope anywhere else in the world. India is leading the way in the
implementation of a national identification program linked to biometric data Aadhaar is
the world's largest biometric ID system, with over 1.20 billion enrolled members as on
31-12-2017 representing over 99% of Indians. The card is meant to streamline

193
bureaucratic processes, for better governance, delivering a range of services to the
citizens as well as distribution of benefits and subsidies. According to Paul Romer, the
chief economist at the World Bank, Aadhar is bloomberg that a worldwide standardised
system on the lines of Aadhaar will benefit everyone on the planet. “The system in India
is the most sophisticated I have seen. It’s the basis for all kinds of connections that
involve things like financial transactions.

6.3. Creation of Unique Identification Authority of India (UDIDAI)

Prior to its establishment as a statutory authority, Unique Identification Authority

of India (UIDAI) was functioning as an attached office of the then Planning
Commission10 vide its Gazette Notification No.-A-43011/02/2009-Admn.I) dated 28th
January, 2009. Later, on 12 September 2015, the Government revised the Allocation of
Business Rules to attach the UIDAI to the Department of Electronics & Information
Technology of the then Ministry of Communications and Information Technology.

The statement of objects and reasons for enactment of the Act reads thus: An Act
to provide for, as a good governance, efficient, transparent, and targeted delivery of
subsidies, benefits and services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India through assigning of unique
identity numbers to such individuals and for matters connected therewith or incidental
thereto. This Act consists of 59 Sections spared into eight chapters.

Unique Identification Authority of India (UIDAI) was created with the objective
to issue Unique Identification numbers (UID), named as "Aadhaar", to all residents of
India to:

(A) Robust enough to eliminate duplicate and fake identities, and

(B) Can be verified and authenticated in an easy, cost-effective way.

The first UID number was issued on 29 September 2010 to a resident of

Nandurbar, Maharashtra. By the end of January, 2017, over 99% of Indians aged 18 and

10
The Planning Commission has been changed to The National Institution for Transforming India,
NITI Aayog

194
above now have Aadhaar cards as more than 1,110 million residents have enrolled
themselves for the unique identification number. This is further accelerated after
demonetization, Aadhaar generation and its use for financial transactions saw a
substantial jump due to the demonetization effect also and the Government is
encouraging the use of AadhaarPay, a merchant version of Aadhaar-enabled payment
system.

The Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and
services) Act, 2016 is a money bill of the Parliament of India. It aims to provide legal
backing to the Aadhaar unique identification number project. It was passed on 11 March
2016 by the Lok Sabha. Certain provisions of the Act came into force from 12th July 2016
to 12th September 2016. Most of the provisions of the Bill have been borrowed from the
previous National Identification Authority of India Bill, 2010. The major difference is
that the three-member committee called the Identity Review Committee of the previous
bill was removed in the new bill. Section 8 of Aadhaar Act is significantly different from
that of NIAI bill, 2010. While the NIAI bill allowed the authentication limited to the
biometric match only with Yes/No option, the Aadhaar Act allows the requesting
agency/person to ask for other information too, pertaining to the person’s identity.

6.3.1. Aadhaar Act, 2016

Under the Aadhaar Act 2016, UIDAI is responsible for Aadhaar enrolment and
authentication, including operation and management of all stages of Aadhaar life cycle,
developing the policy, procedure and system for issuing Aadhaar numbers to individuals
and perform authentication and also required to ensure the security of identity
information and authentication records of individuals.

Chapter – I under sections 1 and 2 deals with the nomenclature and definitions of
the Act. Chapter – II deals with enrolment of Aadhar number procedure, the properties of
Aadhaar number, providing Special measures for issuance of Aadhaar number to certain
category of persons and Update of certain information. Chapter – III provides for
authentication. According to Section 7 of the Act, the Central Government or, as the case
may be, the State Government may, for the purpose of establishing identity of an

195
individual as a condition for receipt of a subsidy, benefit or service for which the
expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated
Fund of India, require that such individual undergo authentication, or furnish proof of
possession of Aadhaar number or in the case of an individual to whom no Aadhaar
number has been assigned, such individual makes an application for enrolment. Thus, this
provision deals with Proof of Aadhaar number necessary for receipt of certain subsidies,
benefits and services, etc. Section 8 deals with the authentication of Aadhaar number.
According to this section, the Authority shall perform authentication of the Aadhaar
number of an Aadhaar number holder submitted by any requesting entity, in relation to
his biometric information or demographic information, subject to such conditions and on
payment of such fees and in such manner as may be specified by regulations. The Clause
8 (4) states that UIDAI may share identity information, but it cannot share the biometric
information. The Section 9 states that Aadhaar is not a proof of citizenship or domicile.
Section 10 provides for Central Identities Data Repository. The UIDAI Authority may
engage one or more entities to establish and maintain the Central Identities Data
Repository and to perform any other functions as may be specified by regulations.

Chapter – IV of the Act deals with the constitution of Unique Identification

Authority of India. Unique Identification Authority of India (“Authority/UIDAI”) has its
Headquarters in New Delhi and eight Regional Offices (ROs) across the country. UIDAI
has two Data Centres, one at Hebbal (Bengaluru), Karnataka and another at Manesar
(Gurugram), Haryana. In accordance with section 11 of the Act, the Central Government
shall, by notification, establish an Authority to be known as the Unique Identification
Authority of India to be responsible for the processes of enrolment and authentication and
perform such other functions assigned to it under this Act. Section 12 provides for
Composition of Authority. The Authority shall consist of a Chairperson, appointed on
part-time or full- time basis, two part-time Members, and the Chief Executive Officer
who shall be Member-Secretary of the Authority, to be appointed by the Central
Government. So far as the Qualifications for appointment of Chairperson and Members
of Authority are concerned, the Chairperson and Members of the Authority shall be
persons of ability and integrity having experience and knowledge of at least ten years in
matters relating to technology, governance, law, development, economics, finance,

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management, public affairs or administration. Term of office and other conditions of
service of Chairperson and Members and the Chairperson and the Members appointed
under this Act shall hold office for a term of three years from the date on which they
assume office and shall be eligible for re-appointment. (Section 14) Section 15 provides
procedure for Removal of Chairperson and Members and Section 6 with restrictions on
Chairperson or Members on employment after cessation of office.

The functions of the Chairperson are concerned, Section 17 stipulates that the
Chairperson shall preside over the meetings of the Authority, and without prejudice to
any provision of this Act, exercise and discharge such other powers and functions of the
Authority as may be prescribed. The Chief Executive Officer who shall be full time
officer has been entrusted with day to day administration of the authority which include
(a) the day-to-day administration of the Authority; (b) implementing the work
programmes and decisions adopted by the Authority; (c) drawing up of proposal for the
Authority’s decisions and work programmes; (d) the preparation of the statement of
revenue and expenditure and the execution of the budget of the Authority; and (e)
performing such other functions, or exercising such other powers, as may be specified by
regulations. Section 19 makes it mandatory that the Authority shall meet at such times
and places and shall observe such rules of procedure in regard to the transaction of
business at its meetings, including quorum at such meetings, as may be specified by
regulations.

6.3.2. UIDAI – Powers and Functions Under Aadhaar Act, 2016

Detailed powers and functions of the Authority are enumerated in Section 23 of

the Act. Section 23 (1) The Authority shall develop the policy, procedure and systems for
issuing Aadhaar numbers to individuals and perform authentication thereof under this Act
(2) Without prejudice to sub-section (1), the powers and functions of the Authority, inter
alia, include—

(a) Specifying, by regulations, demographic information and biometric information

required for enrolment and the processes for collection and verification thereof;

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(b) Collecting demographic information and biometric information from any
individual seeking an Aadhaar number in such manner as may be specified by
regulations;

(c) Appointing of one or more entities to operate the Central Identities Data
Repository;

(d) Generating and assigning Aadhaar numbers to individuals;

(e) Performing authentication of Aadhaar numbers;

(f) Maintaining and updating the information of individuals in the Central Identities
Data Repository in such manner as may be specified by regulations;

(g) Omitting and deactivating of an Aadhaar number and information relating thereto
in such manner as may be specified by regulations;

(h) specifying the manner of use of Aadhaar numbers for the purposes of providing or
availing of various subsidies, benefits, services and other purposes for which
Aadhaar numbers may be used;

(i) Specifying, by regulations, the terms and conditions for appointment of

Registrars, enrolling agencies and service providers and revocation of
appointments thereof;

(j) Establishing, operating and maintaining of the Central Identities Data Repository;

(k) Sharing, in such manner as may be specified by regulations, the information of

Aadhaar number holders, subject to the provisions of this Act;

(l) Calling for information and records, conducting inspections, inquiries and audit of
the operations for the purposes of this Act of the Central Identities Data
Repository, Registrars, enrolling agencies and other agencies appointed under this
Act;

(m) Specifying, by regulations, various processes relating to data management,

security protocols and other technology safeguards under this Act;

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(n) Specifying, by regulations, the conditions and procedures for issuance of new
Aadhaar number to existing Aadhaar number holder;

(o) Levying and collecting the fees or authorising the Registrars, enrolling agencies
or other service providers to collect such fees for the services provided by them
under this Act in such manner as may be specified by regulations;

(p) Appointing such committees as may be necessary to assist the Authority in

discharge of its functions for the purposes of this Act;

(q) Promoting research and development for advancement in biometrics and related
areas, including usage of Aadhaar numbers through appropriate mechanisms;

(r) Evolving of, and specifying, by regulations, policies and practices for Registrars,
enrolling agencies and other service providers; (s) setting up facilitation centres
and grievance redressal mechanism for redressal of grievances of individuals,
Registrars, enrolling agencies and other service providers; (t) such other powers
and functions as may be prescribed.

Chapter – V of the Act deals with Grants, Accounts and Audit and Annual Report.

Security and confidentiality of information

Security and confidentiality of information is an important aspect of the entire

Act. On protection of Information, Section 28 (1) provides that states that the UIDAI
must ensure the security of identity information and authentication records. Under
Section 30, Biometric information deemed to be sensitive personal information. The
biometric information collected and stored in electronic form, in accordance with this Act
and regulations made thereunder, shall be deemed to be “electronic record” and
“sensitive personal data or information”, and the provisions contained in the Information
Technology Act, 2000 and the rules made thereunder shall apply to such information, in
addition to, and to the extent not in derogation of the provisions of this Act. Alteration of
demographic information or biometric information is permissible under Section 31.

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 Every Aadhaar holder shall have access to own information and records of
requests for authentication. The authentication records has been as "record of the time of
authentication and identity of the requesting entity and the response provided" in Section
2 (d). The Section 32 states that the UIDAI must maintain the authentication records for
the specified period. The Aadhaar number holder may access his authentication records
subject to regulation. The UIDAI is not required to maintain the record of the purpose of
authentication.

A limitation on disclosure of information is provided under Section 33. The

Section 33 (1) states that a District Judge or higher court may force the UIDAI to reveal a
person's identity information, i.e. Aadhaar number, photograph and demographic
information, and authentication records, but not the core biometric information. The
Section 33 (2) states that an official with the rank of Joint Secretary or higher may access
a person's identity information including core biometric information, if the official has an
order issued in the interest of national security by the Central Government.

6.3.3. Offences and Penalties Under the Act

Chapter VII deals with offences and penalties under the Act. Penalty for
impersonation at time of enrollment – Section 34 - Whoever impersonates or attempts to
impersonate another person, whether dead or alive, real or imaginary, by providing any
false demographic information or biometric information, shall be punishable with
imprisonment for a term which may extend to three years or with a fine which may
extend to ten thousand rupees or with both. Penalty for impersonation of Aadhaar number
holder by changing demographic information or biometric information – Section 35 -
Whoever, with the intention of causing harm or mischief to an Aadhaar number holder, or
with the intention of appropriating the identity of an Aadhaar number holder changes or
attempts to change any demographic information or biometric information of an Aadhaar
number holder by impersonating or attempting to impersonate another person, dead or
alive, real or imaginary, shall be punishable with imprisonment for a term which may
extend to three years and shall also be liable to a fine which may extend to ten thousand
rupees. Section 36 provides penalty for impersonation which is punishable for a term
which may extend to three years or with a fine which may extend to ten thousand rupees

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or, in the case of a company, with a fine which may extend to one lakh rupees or with
both.

Section 37 deals with Penalty for disclosing identity information - Whoever,

intentionally discloses, transmits, copies or otherwise disseminates any identity
information collected in the course of enrollment or authentication to any person not
authorized under this Act or regulations made there under or in contravention of any
agreement or arrangement entered into pursuant to the provisions of this Act, shall be
punishable with imprisonment for a term which may extend to three years or with a fine
which may extend to ten thousand rupees or, in the case of a company, with a fine which
may extend to one lakh rupees or with both.

Penalty for unauthorized access to the Central Identities Data Repository has been
provided under Section 38 of the Act. Section 39 provides Penalty for tampering with
data in Central Identities Data Repository, Section 40 Penalty for unauthorized use by
requesting entity, Section 41 Penalty for noncompliance with intimation requirements
and Section 42 deals with General penalty. Offences by companies are also liable under
Section 43 of the Act.

Section 50 empowers the Central Government’s power to issue directions. Section

50 (1) Without prejudice to the foregoing provisions of this Act, the Authority shall, in
exercise of its powers or the performance of its functions under this Act be bound by such
directions on questions of policy, as the Central Government may give, in writing to it,
from time to time: “Provided that the Authority shall, as far as practicable, be given an
opportunity to express its views before any direction is given under this sub-section:
Provided further that nothing in this section shall empower the Central Government to
issue directions pertaining to technical or administrative matters undertaken by the
Authority”. (2) The decision of the Central Government, whether a question is one of
policy or not, shall be final.

6.3.4. Supreme Court Verdicts on Scope and Application of UID Act

Aadhaar is the subject of several Rulings by the Supreme Court of India. On 23

September 2013 the Supreme Court issued an interim order saying that "no person should

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suffer for not getting Aadhaar", adding that the Government cannot deny a service to a
resident who does not possess Aadhaar, as it is voluntary and not mandatory11.

The Court also limited the scope of the program and reaffirmed the voluntary
nature of the identity number in other rulings12. On 24 August 2017 the Indian Supreme
Court delivered a landmark verdict affirming the right to privacy as a fundamental right,
overruling previous judgments on the issue. As of November 2017 a Five-Judge
Constitutional Bench of the Supreme Court is yet to hear various cases relating to the
validity of Aadhaar on various grounds including privacy, surveillance, and exclusion
from welfare benefits. On 9 January 2017 the five-judge Constitution bench of the
Supreme Court of India reserved its judgment on the interim relief sought by petitions to
extend the deadline making Aadhaar mandatory for everything from bank accounts to
mobile services. The Court said that the final hearing for the extension of Aadhaar
Linking Deadlines will start on 17 January 201813. Some civil liberty groups such as the
Citizens Forum for Civil Liberties and the Indian Social Action Forum (INSAF) have
also opposed the project over privacy concerns.

Further, a nine-judge Bench of the Supreme Court of India in its is rare and
unanimous decision which is historic not only because it has ruled that privacy is a
fundamental right, but also because it has deepened our understanding of fundamental
rights as inalienable inherent rights in every human-being. Portions of the judgment that
deal with data protection and privacy say that any collection of personal information that
would impact privacy must have a law to back it. A corollary to this proposition is that all
actions of the Unique Identification Authority of India (UIDAI) prior to the coming into
force of the 2016 Aadhaar Act is of suspect constitutionality. A further question arises on
what can be done about such data that was collected without a legal basis. The decision
has been widely celebrated by Aadhaar’s opponents, who believe that the program is in
conflict with the newly enshrined right.

11
"Don't tie up benefits to Aadhaar, court tells Centre". The Hindu. 24 September 2013. Retrieved 15-
7-2017..
12
"Aadhaar Card Not Mandatory, Supreme Court Rules". NDTV. 11 August 2015. Retrieved 15-7-
2017.
13
Government To Extend All Aadhaar Linking Deadlines To March 31".

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 Moreover, a Bench of 9-Judges has been constituted to look into questions
relating to basic human rights. A 3-Judge Bench of this Court was dealing with a scheme
propounded by the Government of India popularly known as the Aadhar card scheme.
Under the said scheme, the Government of India collects and compiles both demographic
and biometric data of the residents of this country to be used for various purposes. One of
the grounds of attack on the said scheme is that the very collection of such data is
violative of the “Right to Privacy14”.

In spite of the fact that the validity of Aadhaar being challenged in the court, the
Central Government has pushed citizens to link their Aadhaar numbers with a host of
services, including mobile SIM cards, bank accounts, the Employee Provident Fund, and
a large number of welfare schemes including but not limited to the Mahatma Gandhi
National Rural Employment Guarantee Act, the Public Distribution System, and Old Age
Pensions. Recent reports suggest that HIV patients have been forced to discontinue
treatment for fear of identity breach as access to the treatment has become contingent on
producing Aadhaar. It shows that the Government will continue to collect the identity
and personal information particulars of the citizens of the country and to store them in a
database.

The citizens are witnessing the instances that investigation agencies are securing
the biometric data stored in the said data banks and using them against the individual,
whose data was secured. Irrespective of the legality of procedure to secure it and produce
before court of law, for admission of biometric evidence, courts are required to rely on
the expert evidence. Hence, the evidenciary value of the expert evidence or opinion,
before proceeding further.

14
Justice K S Puttaswamy (Retd.),and Another v. Union of India And Ors., Writ Petition (Civil) No.
494 of 2012, Judgment pronounced on 24-8-2017.

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6.4. Principles of Admitting Scientific Evidence

6.4.1. United States (US) Courts

A revolution has taken place in the last decade for the admissibility of scientific
evidence in federal courts. Frye v. United States15 was the first important judgment in
America regarding the admissibility of scientific evidence. The Frye test had two aspects.
Firstly, the principle or scientific technique and secondly, the acceptance.

The aspects of the test were criticized on two different grounds.

i) That there will have to be a considerable time lag for the scientific method to be
accepted by the community,

ii) More faith is reposed on the scientific community than in the Court of Law.

Hence, the Federal Rules Of Evidence was enacted in 1975. Rule 702, of which
stated that : “If scientific, technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or education may testify thereto in the
form of an opinion or otherwise16 But the enactment did not settle the dispute as it neither
included the Frye standard nor made a mention of the general acceptance standard. So,
the United States Supreme Court laid down the guidelines in the remarkable judgment of
Inc17. The court concluded by saying that the Federal Rules of Evidence superseded the
Frye Rule and that the rigid general acceptance rule should not conquer the way of a
reasonable minority scientific opinion in the form of new and emerging research based on
reliable studies. It also laid down factors for the basis of scientific evidence which are
also known as The Daubert Guidelines.

15
293 F. 1013 (D.C. Cir. 1923)
16
Federal Rules of Evidence 1975: Available at https://www.law.cornell.edu/rules
17
Daubert v.Merell Dow Pharmaceuticals, Inc 509 U.S 579 (1993)

204
6.4.2. The Guidelines are as follows:

1) The content of the scientific testimony which has already been tested, can be tested
using the scientific method;

2) The technique has been subject to peer review, preferably in the form of publication
in peer review literature;

3) There are consistently and reliably applied professional standards and known or
potential error rates for the technique.

4) Considers general acceptance within the relevant scientific community.

Later the Kumho Tire Case18, expanded the Daubert Analysis, to technical and
specialized subjects that do not fall within the category of “science” After the Daubert
Guidelines were framed, the Federal Rules Of Evidence were then amended in the year
2000. The Rule 702 now provides: that scientific, technical or specialized evidence (i.e.
“Expert testimony”) may be admitted if:

(a) the expert is qualified;

(b) the expert’s testimony will help the jury to decide issues in the case or understand
the evidence; and

(c) the expert’s testimony is based on sufficient facts or data; is the product of reliable
methods and principles, and if the expert reliably has applied the methods and
principles to the facts of the case in trial19

As a result of this revolution, federal trial judges are now required to perform as
so-called “gatekeepers” to determine at the threshold whether expert testimony will be
allowed to be heard by the jury in civil and criminal trials before it helps the jury to
decide issues in the case or understand the evidence according to Rule 702 of Federal
Rules Of Evidence. In Daubert, Justice Blackmun, writing for the majority, expressed the

18
Kumho Tire company, ltd v. Carmichael, 526 U.S 137 (1999)
19
Dr.MP Kantak, Dr M.S. Ghodkirekar & Dr. S.G.Pemi “Utility of Daubert guidelines in India” 26(3)
JIAFM 110 (2004)

205
Court’s confidence in the ability of federal trial judges to function as gatekeepers of
admissibility of scientific and technical evidence to insure that only qualified experts are
permitted to testify on these subjects, based on sufficient facts or data, and reliable
methodology that properly has been applied to the facts of the particular case. He said:
“Faced with proffer of expert scientific testimony, then, the trial judge must determine at
the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to

(1) scientific knowledge that

(2) will assist the trier of fact to understand or determine a fact in issue.

This entails preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and whether that reasoning or
methodology properly can be applied to the facts in issue. We are confident that federal
judges possess the capacity to undertake this review20. In the Joiner Case21 which
discussed about the admissibility of scientific evidence, Associate Justice Stephen
Breyer, has offered the following observation on the role of science in court cases: “In
this age of science, science should expect to find a warm welcome, perhaps a permanent
home, in our courtrooms. The reason is a simple one. The legal disputes before us
increasingly involve the principles and tools of science. Proper resolution of those
disputes matters not just to the litigants, but also to the general public – those who live in
our technologically complex society and whom the law must serve. Our decisions should
reflect a proper scientific and technical understanding so that the law can respond to the
needs of the public”22. Justice Breyer, also noted that federal judges typically are
generalists, not specialists and few are having training or experience in science and
technology23. Chief Justice Rehnquist, in his opinion concurring in part and also
dissenting in part from the majority opinion, was not less confident about the ability of
the federal trial judiciary, but was less certain that the Court’s ruling would provide them
20
Daubert, 509 U.S. at 591 (Emphasis added) (Internal Citations Omitted)
21
General Electric V. Joiner, 522 U.S 136 (1997)
22
Stephen Breyer, Introduction to REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1, 2 (2 nd
edn.,2000)
23
“[M]ost judges lack the scientific training that might facilitate the evaluation of scientific claims or
the evaluation of expert witnesses who make such claims. Judges typically are generalists, dealing
with cases that can vary widely in subject matter.” Stephen Breyer, Introduction to REFERENCE
MANUAL ON SCIENTIFIC EVIDENCE 1, 4 (2nd edn., 2000)

206
with the means to the job assigned. He observed: “The Court speaks of its confidence that
federal judges can make a ‘preliminary’ assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue. The Court then
states that a ‘key question’ to be answered in deciding whether something is ‘scientific
knowledge’ ‘will be whether it can be (and has been) tested.’

6.4. United Kingdom(UK/EU)

In England, the law dealing with the admissibility of scientific evidence is totally
different from United States. The English precedential analysis shows that judges are
reluctant to impose any stringent standards like ‘reliability’ test in U.S. The English
courts are still following the traditional common law test “helpfulness” developed by
Lawton, L.J. in the famous case R. v. Turner. The four requirements of admissibility of
expert opinion in England and Wales (common law) countries are

i) assistance,

ii) relevant expertise,

iii) impartiality and

iv) evidentiary reliability.

Assistance

The meaning of “Assistance” was explained by the leading case of Turner that an
opinion of expert “is admissible to furnish the court with ... information which is likely to
be outside the experience and knowledge of a judge or jury. If on the proven facts a judge
or jury can form their own conclusions without help, then an opinion of an expert is
unnecessary”. In other words if the opinion of the expert is unnecessary, it becomes
inadmissible. Further, the person claiming expertise must be an expert in the relevant
field. Moreover, the evidence that is presented by the expert should be unbiased and
purposive evidence. Finally, the expert opinion evidence must in other respects satisfy a
threshold (entry) of acceptable reliability.

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6.5. Position in India

In India the principles of admissibility of evidence is relevancy. According to the

Indian Evidence Act, 1872, section 45 of, deals with expert evidence. The principles of
admissibility in Indian Courts are that evidence can be given only of relevant facts and
facts in issue. A fact may be relevant but not admissible, like in case of documentary
evidence, only under certain circumstances secondary evidence of a document can be
produced. If it does not satisfy the legislative provision, although a document might be
relevant but it would not be admissible. It might also happen that a document or an expert
report might be admissible as it is an original one or otherwise but since it is not relevant,
such evidence is not accepted by courts. Therefore, in India, the principle for accepting
forensic evidence is relevancy and admissibility. Under, the broad principles of
‘relevancy’ comes reliability, helpfulness, fitness which are treated as separate grounds in
US. Assistance, relevant expertise, impartiality and evidentiary reliability which are the
principles for admission of expert evidence in UK, also comes under the requirement of
‘relevancy’.

In India, the law regarding expert evidence is guided by sections 45 to 51 of the

Indian Evidence Act, 1872. In the case of Mahmood v. State of U.P24. , the Supreme
Court has defined the term expert and said that it would be highly unsafe to convict a
person on the sole testimony of an expert. Although conviction based on expert evidence
is unsafe, yet the incorporation of Section 53 and 53A of the Code of Criminal Procedure,
1973, mandates that in certain cases the expert evidence is indispensable. In the case of
Selvi v.State of Karnataka25 the Supreme Court held that compulsory administration of
forensic techniques like polygraphy, Narco-analysis and Brain-Mapping is
unconstitutional if performed without the consent of the accused as it violates Article
20(3) and Article 21 of the Constitution of India26.

As a general rule, the opinions, inferences, beliefs and mere speculations of

witnesses are inadmissible before a Court of law. It means that such types of evidence

24
AIR 1976 SC 69
25
2010 (7) SCC 263
26
Article 20(3) Prohibits self-incrimination and Article 21 guarantees Right to life and personal liberty.

208
do not merit consideration. Hence they are excluded as inadmissible in the law of
Evidence. Witnesses considered as fact reporting agents of the legal machinery and
their role in the adjudicating process is to inform the court of facts. 'Facts' means and
contain only facts and not opinions or inferences.

In the law of evidence, 'opinion' means any inference from observed facts'-
However, in some situations it will be difficult to distinguish between fact and
opinion because there are borderline cases in which the evidence of fact is mingled
with evidence of opinion. For example, statements relating to the speed of a particular
thing, identity of persons etc. are mingled with fact and inference. In such cases, the
law permits witnesses to state their opinion, without which the fact finder cannot come
to a correct conclusion. In some other cases, the line, which differentiates facts from
opinion, may be delicate. Ordinary lay witness cannot identify certain facts with his
prudence.. Such facts may be obscure or invisible to him. But a witness having a
particular skill or training may be able to perceive such facts.

In India, there is no separate provision in the Indian Evidence Act

regarding the admissibility of lay opinion testimony In order to admit a particular piece
of opinion, it should come under Section 45 of the Act. But from the language
of Section 47 to 50, lay opinion testimony relating to handwriting, existence of right
or custom. usages, tenets and relationship may be admitted. In all other cases, it
should satisfy the requirements under Section 45. Section 45 specifically provides that
in order to admit a particular piece of opinion, the person stating that opinion must
prove that he is an Expert. Sec.47 of Evidence Act reads as follows:

“When the court has to form an opin1on as to the person by whom any
document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed that it was
or was not written or signed by that person, is a relevant fact.”

From the construction of the provision itself, it is clear that "any person" may
give testimony regarding the handwriting or signature and it is not restricted to experts.

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One feature of this Section distinct from United States law is that it is not necessary to
have direct knowledge

While interpreting the above provisions, Hon'ble Patna High Court in Basudeo
Gir v. State2787 , when the only evidence against the accused was the sole
testimony of Ramkishun Ram and a footprint found in his house on a gramophone
record. The said print was photographed and sent to a foot print expert along with
the print took from the accused in triplicate. The question before the court was
whether footprint evidence could be made admissible under Section 45 of the Indian
Evidence Act Giving a liberal interpretation to Section45, the court, referred to the
word "Science" as defined in the Universal Dictionary of English Language as
proficiency, dexterity, skill based on long experience and practice and came to the
conclusion that it was sufficiently wide enough to include the evidence of foot print
expert 88 Analyzing Section 45 he said that the very amendment made out in
Section 45 to include finger impression showed that it was the policy of the
legislature to take the merit of developments in science.

From this case it is clear that in India, the words 'Science' and 'art' can be
interpreted liberally to include all relevant changes in the society and technology. The
only limitation is that, in each case the new subject of testimony should come
under 'science' or 'art' If it is out side of these two subjects, court cannot include it in the
list of subjects provided in Section 45.

Yet in another decision, In State v. S.J. Chaudhary'", Supreme Court made an

attempt to state the scope and ambit of Section 45, while deciding the important
question of law, whether opinion of typewriter expert is admissible under Section 45
of the Indian Evidence Act. In this case the prosecution wanted to adduce certain
incriminating facts against the respondent with the help of a typewriter expert. J. S.
Verma J., held, the words science and art provided in Section 45 of the Indian
Evidence Act is of wide import to include each branch of the subjects. The

27
AIR 1959 Pat 534

210
significance of this case was that, court imported the terms 'skill' or 'technique' with the
word science, but court was silent about its application in future cases.

More over, the Law Commission of India in its 185 th report of the amendment
to the Evidence Act has recommended sweeping change to Section 45. After considering
the English law from the commentaries of Phipson, the Commission recommended to
incorporate three additional words, "trade, technical terms and identity of persons or
animals" to Section 45.

The analysis of these judicial pronouncements would not only give

us an acceptable definition of an expert but would also help to identify the
role of an expert and scope of his evidence.

For admitting the expert evidence, the following grounds shall be considered.

1. Expert evidence should be independent and not influenced by the exigencies

of litigation:

2. Expert opinion should be unbiased and objective; an expert witness should

never assume the role of an advocate;

3. Facts or assumptions upon which the opinion was based should be stated, together
with material facts which could detract from the concluded opinion,

4. An expert witness should make it clear when a question or issue fell outside
his experience;

5. If there was insufficient data upon which to reach an opinion, this had to be
stated with an indication that the opinion was provisional and any doubts
had to be stated;

6. If the expert changed his mind, this had to be made known to the other side
without delay:

7. There ought to be full disclosure of documents referred to in the expert

evidence.

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 In India the term 'expert' or 'expert opinion' is not directly defined any where
in the Indian Evidence Act or in any other Statute. Section 45 of the Indian Evidence
Act simply says that the persons who are specially skilled in foreign law, science,
art, handwriting or finger impressions are called experts Thus Section 45 limits the
subject of expert testimony as stated.

6.5.1.Protection of and Implications of Biometric Data under UID Act

Biometric information collected by the Aadhaar project could also be protected by

an appropriate data protection regime, an emerging field of law which has yet to receive
judicial attention despite Justice Ajit Prakash Shah’s well-publicised data protection
principles28. India issued very basic data protection rules in+ 2011 which were widely
panned for their shoddy drafting and flimsy safeguards. But because the rules only apply
to bodies corporate, the UIDAI escapes regulation since it is an executive authority.
Important executive summary on data protection deals:

1. With the initiation of national programmes like Unique Identification number,

NATGRID, CCTNS, RSYB, DNA profiling, Reproductive Rights of Women,
Privileged communications and brain mapping, most of which will be implemented
through ICT platforms, and increased collection of citizen information by the
government, concerns have emerged on their impact on the privacy of persons.
Information is, for instance, beginning to be collected on a regular basis through
statutory requirements and through egovernance projects. This information ranges
from data related to: health, travel, taxes, religion, education, financial status,
employment, disability, living situation, welfare status, citizenship status, marriage
status, crime record etc. At the moment there is no overarching policy speaking to
the collection of information by the government. This has led to ambiguity over who
is allowed to collect data, what data can be collected, what are the rights of the
individual, and how the right to privacy will be protected The extent of personal
information being held by various service providers, and especially the enhanced

28
Report of the Group of Experts on Privacy, Planning Commission , Government of India, 2012

212
 potential for convergence that digitization carries with it is a matter that raises issues
about privacy.

The report proposes five salient features of framework:

1. Technological Neutrality and Interoperability with International Standards

2. Multi-Dimensional Privacy

3. Horizontal Applicability

4. Conformity with Privacy Principles and

5. Co-Regulatory Enforcement Regime

Today in India, In India, currently there are at least eighteen documents that are
recognized as acceptable proofs of identity. These include passport, PAN card, ration/
PDS photo card, voter id, driving license, government photo id cards, NREGS job card,
photo id issued by a recognized educational institution, arms license, photo bank ATM
card, photo credit card, pensioner photo card, freedom fighter photo card, kissan photo
passbook, CGHS / ECHS photo card, address card having name and photo issued by
department of posts and certificate of identify having photo issued by group a gazetted
officer on letterhead, disability ID Card/handicapped medical certificate issued by the
respective State/Union Territories. Each of these identities serves a specific function, and
none act as one comprehensive national identifier. Government issued identification is
essential to the effective functioning of a State, and to the mobility of individuals in the
formal structures of a country. Governments use identification to assess populations for
the delivery of services, and to monitor populations within its borders. It shows the
collection of personal and biometric data of citizens through one or the other mode.

6.5.2. Biometric Identification - Issues and Challenges

Using biometric technology to identify and monitor people raises issues relating
human rights and its concerns. The biometric technology in particular and often
associated with intrusions into privacy of individuals. The personal and permanent
natures of the physiological features of person are analyzed by a biometric system raising

213
an inherent tension with privacy interests. When biometrics is applied in a surveillance
context, concerns for privacy naturally increase as biometrics refers to a process of
recording, measuring, and analyzing a range of human physiological features. The scope
of features to which biometrics may be directed is all encompassing, and includes
appearance, behaviour, and cognitive state of which certain physiological features are
permanent, unique, and universal.

In the modern world, the biometric technologies are increasingly being used for
surveillance purposes by almost all governments. For instance, in the United States
military and intelligence agencies have increasingly implemented biometric technologies
in their intelligence, surveillance, and reconnaissance (ISR) activities. Biometric
technology is acquiring an increasingly important position in U.S. military and national
security policy29. Biometrics have expanded in complexity and usage since 9/11,
extending to logical and physical access systems; surveillance operations to fight against
fraud and organized crime; immigration control and border security systems; national
identity programs; identity management systems; and the determination of friend or foe
in military installations30.

6.5.3 Biometric identification and Immunity against self-incrimination in India

The constitution of India guarantees under Article 20(3) is a protective umbrella

against testimonial compulsion for people who are accused of an offence and are
compelled to be a witness against themselves. The provision borrowed from the Fifth
Amendment of the American Constitution which lays down that, “No person shall be
compelled in any criminal case to be a witness against himself”, same as mentioned in
the Constitution of India embodying the principles of both English and American
Jurisprudence. This libertarian provision can be connected to an essential feature of the
Indian Penal Code based on the lines of Common Law that, “an accused is innocent until
proven guilty” and the burden is on the prosecution to establish the guilt of the accused;

29
Department of Defence, “Project Management Department of Defense Biometrics,” Program
Executive Office: Intelligence Electronic Warfare & Sensors; https://peoiews.army.mil/programs/
biometrics, accessed July 2017.
30
N. Evans, S. Marcel, A. Ross, and A. Beng Jin Teoh, “Biometrics security and privacy protection,”
IEEE Signal Processing Mag., vol. 17, 2015.

214
and that the accused has a right to remain silent which is subject to his much broader
right, against self-incrimination. Such protection is also accorded by the provisions of
The Indian Evidence Act.

The pillars of Article 20(3) is “The exercise of the power to extract answers
begets a forgetfulness of the just limitations of that power31.” This protection is available
to every person including not only individuals but also companies and incorporated
bodies. This clause gives protection only if the following ingredients are present:

1. It is a protection available to a person accused of an offence;

2. It is a protection against compulsion to be a witness against oneself; and

3. It is a protection against such “Compulsion” as resulting in his giving evidence

against himself.

4. It is only on making of such formal accusation that Clause (3) of Article 20 becomes
operative covering that person with its protective umbrella against testimonial
compulsion. It is imperative to note that, “a person cannot claim the protection if at
the time he made the statement, he was not an accused but becomes an accused
thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations
against a government servant, since there is no accusation of any offence within the
meaning of Article 20 (3).

In this context, self-incrimination has been extensively discussed in Indian case in

the case of Nandini Satpathy v. P.L Dani32. In this case, the appellant, a former Chief
Minister of Orissa was directed to appear at Vigilance Police Station, for being examined
in connection to a case registered against her under the Prevention of Corruption Act,
1947 and under Sections 161 and 165 and 120-B and 109 of The Indian Penal Code,
1860. Based on this an investigation was started against her and she was interrogated
with long list of questions given to her in writing. She denied to answer and claimed

31
Wigmore, Evidence, 2264 (2nd edn, 1923) as cited in Fred Inbau, Self-Incrimination: what can a
Accused Person be compelled to do?, 28(2) Journal Of Criminal Law And Criminology 261, 264
(1937).
32
Nandini Satpathy v. P.L Dani, AIR 1978 SC 1025

215
protection under Article 20(3). The Supreme Court ruled that the objective of Article
20(3) is to protect the accused from unnecessary police harassment and hence it extends
to the stage of police investigation apart from the trial procedure. However, protection
under Article 20(3) is available only against compulsion of the accused to give evidence
against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily
produces documentary evidence, incriminatory in nature, Article 20(3) would not be
attracted. The term compulsion under Article 20(3) means ‘duress’. Thus, compulsion
may take many forms. If an accused is beaten, starved, tortured, harassed etc. to extract a
confession out of him/her then protection under Article 20(3) can be sought.

The development and optimum utilisation, reliance on biometric evidence in the

recent times in law makes the issue controversy. The issue of involuntary administration
of certain scientific techniques, like narco-analysis tests, polygraph examination, etc. for
the purpose of improving investigation efforts in criminal cases has gained a lot of
attention. For a long time, there was a debate about whether such tests were violative of
Article 20(3) or not.

In Selvi v. State of Karnataka33 the issue were brought to the Supreme Court in
the through the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the
Court, and drew the following conclusions:

1. The right against self-incrimination and personal liberty are non-derogable rights,
their enforcement therefore is not suspended even during emergency.

2. The right of police to investigate an offence and examine any person do not and
cannot override constitutional protection in Article 20(3);

3. The protection is available not only at the stage of trial but also at the stage of
investigation;

4. That the right protects persons who have been formally accused, suspects and
even witnesses who apprehend to make any statements which could expose them
to criminal charges or further investigation;

33
Selvi v. State of Karnataka, AIR 2010 SC 1974.

216
5. The law confers on ‘any person’ who is examined during an investigation, an
effective choice between speaking and remaining silent. This implies that it is for
the person being examined to decide whether the answer to a particular question
would be inculpatory or exculpatory;

6. Article 20(3) cannot be invoked by witnesses during proceedings that cannot be

characterised as criminal proceedings;

7. Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts

protection under Article 20(3);

8. Conducting DNA profiling is not a testimonial act, and hence protection cannot
be granted under Article 20(3);

9. That acts such as compulsory obtaining signatures and handwriting samples are
testimonial in nature, they are not incriminating by themselves if they are used for
the purpose of identification or corroboration;

10. That subjecting a person to polygraph test or narco-analysis test without his
consent amounts to forcible interference with a person’s mental processes and
hence violates the right to privacy for which protection can be sought under
Article 20(3);

11. That the courts cannot permit involuntary administration of narco-tests, unless it
is necessary under public interest.

Thus, according to the Supreme Court fingerprinting and other physical evidence
is not covered by article 20(3). In the case of State of Bombay v. Kathi Kalu Oghad34, the
courts answered the question of whether or not the freedom against self-incrimination
guaranteed under article 20(3) of the Constitution of India, which is meant to protect a
person from torture from the police a question as to whether it can be extended to the
collection of DNA. The courts answered this question by upholding that:

34
Ibid supra

217
 “To be a witness may be equivalent to ‘furnishing evidence’ in the sense of
making oral or written statement, but not in the larger sense of the expression so as to
include giving of thumb impression or impression of palm or foot or fingers or specimen
writing or exposing a part of the body by an accused person for purposes of
identification35”

Here comes the importance of personal identification and authorisation which in

general may be in the form of signatures, digital as well as biometric forms of
identification (fingerprints, DNA, retina scans), security experts make a basic distinction
between authentication and authorization. Authentication refers to the practices that
establish that some person is who they say they are. Authorization, in contrast, deals with
the policies that either grant or deny certain privileges to that person. Authentication says
nothing about authorization, and vice versa; they are discrete and independent properties.

An analysis of Article 20 (3) invokes protection against self-incrimination and

gives an accused the right to remain silent over any issue which tends to incriminate him.
This protection by the Indian Constitution is also extended to suspects. Article 20 (3) has
been carefully crafted to protect the accused from further self-incriminating himself only
if any statement of his might result in prosecution. For the benefit of the Courts, the
Supreme Court has distinguished between the terms “witness” and “furnish evidence”,
the former including furnishing statements from one’s own knowledge and the latter
referring to simply presenting documents required by the court under which protection
under Article 20(3) cannot be sought.

On a close discussion of both right against self-incrimination and right to privacy,

it was in Selvi v. State of Karnataka,36, this Court went into an in depth analysis of the
right in the context of lie detector tests used to detect alleged criminals. A number of
judgments of this Court were examined and this Court, recognizing the difference
between privacy in a physical sense and the privacy of one’s mental processes, held that
both received constitutional protection. This was stated in the following words:

35
AIR 1961 SC 1808
36
Selvi v. State of Karnataka, (2010) 7 SCC 263

218
 Para 224. “Moreover, a distinction must be made between the character of
restraints placed on the right to privacy. While the ordinary exercise of police powers
contemplates restraints of a physical nature such as the extraction of bodily substances
and the use of reasonable force for subjecting a person to a medical examination, it is not
viable to extend these police powers to the forcible extraction of testimonial responses. In
conceptualising the “right to privacy” we must highlight the distinction between privacy
in a physical sense and the privacy of one’s mental processes.

Para 225. So far, the judicial understanding of privacy in our country has mostly
stressed on the protection of the body and physical spaces from intrusive actions by the
State. While the scheme of criminal procedure as well as evidence law mandates
interference with physical privacy through statutory provisions that enable arrest,
detention, search and seizure among others, the same cannot be the basis for compelling a
person “to impart personal knowledge about a relevant fact”. The theory of
interrelationship of rights mandates that the right against self-incrimination should also
be read as a component of “personal liberty” under Article 21. Hence, our understanding
of the “right to privacy” should account for its intersection with Article 20(3).
Furthermore, the “rule against involuntary confessions” as embodied in Sections 24, 25,
26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as
well as voluntariness of testimony given in a custodial setting. A conjunctive reading of
Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads
us to a clear answer. We must recognise the importance of personal autonomy in aspects
such as the choice between remaining silent and speaking. An individual’s decision to
make a statement is the product of a private choice and there should be no scope for any
other individual to interfere with such autonomy, especially in circumstances where the
person faces exposure to criminal charges or penalties37.”

In another recent case, the Supreme Court passed an ad-interim order in Unique
Identification Authority of India and anr. v. Central Bureau of Investigation38, the
Supreme Court,Order dated March 24, 2014 where it held that the Unique Identification

37
Supra note no 33.
38
Unique Identification Authority of India and Anr. v. Central Bureau of Investigation, Special Leave
to Appeal (Crl) No (s).2524/2014

219
Authority of India was restrained from transferring anyone’s biometric information with
an Aadhaar number to any other agency without such person’s consent in writing. The
facts of the instant case being that the writ before the Bombay High Court sought to
challenge the order of the magistrate of October 22, 2013 in which certain data of persons
holding Aadhar cards had been provided to the Central Bureau of Investigation (CBI)
upon CBI’s request for data under Section 91 of the Criminal Procedure Code, 1973, i.e.,
power to seek summons for production of a document from a person in possession of
such document. The CBI had approached the magistrate in respect of a rape case of a
seven year old child, which had taken place in a school washroom and the CBI had been
unable to identify the offender.

The CBI had however been able to retrieve some fingerprints from the place of
the incident which could help them trace the accused. hese fingerprints had been sent to
the Unique Identification Authority of India (“UIDAI”) and the CBI sought information
from the authority to search through its database and help identify if the fingerprints
could be traced to anyone in the database. UIDAI refused to provide this information on
the grounds that this would violate the privacy of Aadhar card holders. UIDAI relied on
the case of District Registrar and Collector v. Canara Bank39 in which the Supreme
Court had laid down the parameters of reasonable searches and seizures to ensure that a
party’s fundamental right against self-incrimination is not violated under Article 20 (3) of
the Constitution of India.

During arguments, UIDAI also informed the High Court that several petitions
were pending before the Supreme Court with respect to data held by the UIDAI including
Writ Petition No. 494/2012: Justice K. S. Puttaswamy v. Union of India, Writ Petition
Writ Petition (Civil) No. 494/2012: Justice K. S. Puttaswamy v. Union of India before the
Supreme Court of India. In the case before the Bombay High Court, the CBI had asked
for all the data available in the State and thereafter the request was restricted to three
specific persons. UIDAI refused to provide this information and then the CBI sent a CD
to the UIDAI with fingerprints it had retrieved and asked UIDAI to compare them with
the biometric available with it. UIDAI claimed that it did not have the requisite

39
Appeal (civil) 6350-6374 of 1997

220
technology to parse through all the biometric information it held to run the comparison
process. In the subsequent developments, the Supreme Court has restrained the UIDAI
from sharing any biometric information in its database without the consent of the owner
of such data in writing.

6.5.4. Biometric identification and right to privacy in India

The collection and use of biometrics for identification of criminals legally began
in India during the 1920's with the approval of the Identification of Prisoners Bill 192040.
The object of the Bill is to “provide legal authority for the taking of measurements of
finger impression, foot-prints, and photographs of persons convicted or arrested…”41
The Bill is still enforced in India, and in October 2010 was amended by the State
Government of Tamil Nadu to include “blood samples” as a type of forensic evidence42.
Other Indian legislation pertaining to forensic evidence is the Cr.P.C. and the Indian
Evidence Act. In 2005 section 53-A of the Cr.P.C. was amended to authorize
investigating officers to collect DNA samples with the help of a registered medical
practitioner, but the Indian Evidence Act fails to manage science and technology issues
effectively43. The present states of statutes for DNA collection in India are not sufficient
as the neglect to lay out precise procedures for collection, processing, storage, and
dissemination of DNA samples.

The Code of Criminal Procedure and the Indian Evidence Act were enacted at a
time when modern scientific advancement and DNA tests were not even in the
contemplation of Parliament or legislature. Worldwide, it has been proven that the results
of DNA tests test, if conducted in conformity with modern and latest protocol on the
subject, are scientifically accurate.

Section 53 of the Code of Criminal Procedure, 1973, authorises a police officer to

get the assistance of a medical practitioner in good faith for the purpose of the
investigation. But, it does not enable a complainant collect blood, semen etc for bringing

40
The Prisoners Identification Act, 1920, recently amended 1981
41
The Law Commission of India, 87th Report, 1920, http://lawcommissionofindia.nic.in/51-
100/report87.pdf
42
http://www.tn.gov.in/stationeryprinting/extraordinary/2010/305-Ex-IV-2.pdf
43
Adhikary, Jyotirmoy. DNA Technology in Administration of Justice. Lexis Nexis. 2007 pg. 259

221
criminal charges against the accused. The Cr.P.C. (Amendment) Act, 2005, has brought
two new sections which authorise the investigating officer to collect DNA sample from
the body of the accused and the victim with the help of medical practitioner.

The introduction of DNA technology is being perceived to pose serious challenge

to some legal and functional rights of an individual such as ‘Right to privacy’ and ‘Right
against Self-incrimination’. And this is the most important reason why courts sometimes
are reluctant in accepting the evidence based on DNA technology. Right to Privacy has
been included under right to life and personal liberty or Article 21of the Indian
Constitution. Article 20(3) provides Right against Self- Incrimination which protects an
accused in criminal cases from providing evidence against himself or evidence which can
make him guilty.

On a discussion about the application of DNA technology in the administration of

justice, there are so many implications in the use of this technology. There is no doubt
this new technology can be used as an effective tool in crime detection to accelerate
crime control for a better society. But at the same time we overlook the fact that it cannot
be implemented in any legal system without hampering some basic human rights of an
accused like right against self-incrimination, right to privacy etc44. In this connection, the
view expressed by Justice R.K. Abichandani requires consideration.

“The importance of fast developing DNA technology and its impact on the rights
of an individual and its societal effect have created urgent need for getting acquainted
with and understanding the basic of modern genetic science for an effective role by all
those who are concerned with justice delivery system. The Constitution of India by some
Articles like 20(3), 51A (h) and (g) tries to uplift the genetic science. The Constitutional
provisions take care of the scientific developments that may take place and may be put to
use for the benefit of people. The Constitution provides efficient scales for balancing

44
Paramjit Kaur, DNA Fingerprinting and its Evidentiary value, Criminal Law Journal, May 2006, p.
81.

222
between public and private interest and the Court have put to use its provisions for an
effective social engineering to protect human rights recognized by the Constitution.45”

However, the Supreme Court of India has Upheld mandatory use of biometric
identification for filing taxes and tax account applications etc. India’s Supreme Court, on
June 9, 2017, upheld the constitutional validity of section 139-AA of the Income Tax
Act, 196146, which made the Act’s biometric-based identification project, Aadhaar,
mandatory for filing income tax returns and applying for Permanent Account Numbers
(PANs).

In Binoy Viswam v. Union of India & Ors.,47 the Supreme Court Upholds Law
Linking Aadhaar with PAN, Income Tax Act, 1961, as amended, Section 139AA, India
Income Tax PANs are account numbers issued in the form of laminated cards and used
for all transactions and correspondence with the Income Tax Department. However, the
Court’s ruling exempts PAN holders who are not yet enrolled in Aadhaar from the
provision under section 139AA(2) of the Act, which requires PAN holders to use
Aadhaar numbers, until constitutional challenges to Aadhaar have been settled.

However, The Supreme Court has yet to decide whether privacy is a fundamental
right under article 21 of the Indian Constitution and whether Aadhaar violates this right
for lack of adequate safeguards in the collection of identity data. he Court will also be
ruling on the constitutionality of government notifications issued under the Aadhaar Act
that make Aadhaar mandatory for various programmes.

On the privacy and legal frame work in India, one has to locate the Aadhaar
project on a larger map of Indian privacy demands a brief exercise in taxonomy. The
constitutional right to privacy has evolved in three streams. The strongest privacy stream
regulates surveillance. Although the Constitution’s drafters chose not to include an
explicit right against invasions of correspondence and the home, the Supreme Court has

45
Justice, R.K. Abichandani, The Gene age, Legal Perspective, Conference at NLSAR University of
law, Hyderabad held on 03/05/2003.
46
139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of
July, 2017, quote Aadhaar number— (i) in the application form for allotment of permanent account
number; (ii) in the return of income.....
47
Binoy Viswam v. Union of India & Ors., Writ Petition (Civil) No. 277 of 2017

223
protected both. But although individual freedoms are generally secure, there is a
discernible judicial trend that privileges the interests of the state. That is why the
Attorney-General based his anti-privacy arguments on surveillance-related cases: so that
he could exploit this accompanying narrative of the state’s superior compelling interest.
However, there is a significant difference between the Aadhaar project and pre-existing
law regarding bodily and biometric privacy. On the face of it, the Aadhaar project is
unconnected with public health, public morality, or public safety.

On privacy of individuals in India, in 2011, the erstwhile Planning

Commission constituted a group of experts to suggest the contours of future Indian
privacy law. Chaired by Justice Ajit P. Shah, the highly-regarded former Chief Justice of
the Delhi High Court, the group considered the implications of the Aadhaar project
and proposed nine principles to inform privacy law. These are the principles of notice,
informed consent and opt-out choice, collection limitation, purpose limitation, access and
correction, non-disclosure, data security, openness, and accountability. They are actually
data protection principles; their scope is narrower than the conceptual breadth of privacy.
More than 90 percent of India’s adult population’s biometric information has already
been collected and when the total enrollment is done, the government will present the
Aadhaar project to the Constitution Bench as a fait accompli. Nevertheless, the Supreme
Court has a unique opportunity to clarify the right to privacy, besides fixing the lack of
substantive due process in the Aadhaar project.

6.5.5. Biometric Identification – New challenges in India

As of now in India there is national law that empowers the government to collect
and store DNA profiles of convicts, but DNA collection and testing and is taking place in
many states, for example, in Pune the army is currently considering creating DNA
profiles of troops who are involved in hazardous tasks in order to help identify bodies
mutilated beyond recognition. In December of this year a judge in the Supreme Court
ordered DNA testing on a congress spokesmen to determine if his child was really his
child. In the orders of the Court, it was held that a distinction has to be drawn between
legitimacy and paternity of the child and Section Section 112 of the Section 112 of the
Indian Evidence Act, 1872 is intended to safeguard the interest of the child by securing

224
his/her legitimacy and not to paternity. Section 112 of the Indian Evidence Act, 1872 is
intended to safeguard the interest of the child by securing his/her legitimacy and not to
paternity. Indian Evidence Act, 1872 is intended to safeguard the interest of the child by
securing his/her legitimacy and not to paternity and that that a child has a right to know
the truth of his/her origin the right of a child to know his biological roots can be enforced
through reliable scientific tests and if the interest of the child is best sub-served by
establishing paternity of someone who is not the husband of his mother, the Court should
not shut that consideration altogether; Indian law casts an obligation upon a biological
father to maintain his child and does not disregard rights of an illegitimate child to
maintenance.

In N.D. Tivari paternity test case, the Supreme Court N.D. Tiwari, Congress
leader and former Governor of Andhra Pradesh to provide blood samples for DNA test in
the paternity test case. Justice S Rabindra Bhatt of Delhi High Court should be
complimented for ordering DNA test for former Andhra Pradesh Governor N.D. Tiwari
to decide paternity-claim filed by one Rohit Shekhar, whereupon the Delhi high court had
said that N.D. Tiwari could be compelled to give blood sample48. It further said that
police assistance could be sought if he refused to agree to do it voluntarily.

The introduction of the DNA Technology has posed serious challenge to some
legal and fundamental rights of an individual such as ‘Right to Privacy’, ‘Right against
self-incrimination’. And this is the most important reason why courts sometimes are
reluctant in accepting the evidences based on DNA Technology. Right to Privacy has
been included under Right to Life and Personal Liberty or Article 21 of the Indian
Constitution, and Article 20(3) provides Right against Self-Incrimination which protects
an accused person in criminal cases from providing evidence against himself or evidences
which can make him guilty.

But it has been held by the Supreme Court on several occasions that Right to Life
and Personal Liberty is not an absolute Right. In Govid Singh v. State of Madhya
Pradesh49, Supreme Court held that a fundamental right must be subject to restriction on

48
Rohit Shekhar v. Narayan Dutt Tiwari & Anr, FAO(OS) No. 547/2011
49
Govind v. State Of Madhya Pradesh & Anr on , 1975 AIR 1378, 1975 SCR (3) 946

225
the basis of compelling public interest.DNA test or ‘DNA Profiling’ as popularly known
is a technique in which a sample of DNA is run through a laboratory assay to generate
information about it, looking specifically for DNA which could identify the source of the
sample, or be used as a base of comparison between two samples. This technique is used
at various places for different purposes ranging from law enforcement to Medical
Treatment.

6.5.6. DNA and Forensic Evidence

In the history, hardly one can find the standardized forensic practices which aided
in criminal justice dispensation system and awarding punishments. The Criminal
investigations and trials relied on oath, confessions whether forced or voluntary and
witness testimony. However ancient sources contain several accounts of techniques that
foreshadow the concepts of forensic science that is developed centuries later. The first
recorded example of forensic dentistry may be the account of Agrippina, the Roman
emperor Nero's mother, who sent for the head of her enemy Lollia Paulina50 to verify her
death. In ancient China polygraph tests used to be conducted in which they relied on
physiological reactions. According to recorded history, in ancient Rome, officials
employed experts in handwriting analysis to compare the writing styles of scribes in
order to detect forgery. In ancient India medical opinion was frequently applied to the
requirements of the law. It was the law for the minimum age for girls who was fixed at 12
years and the duration of pregnancy was recognized as being between 9 and 12 lunar
months with an average of 10 months and there is evidence that doctors had to opine on
such case. In India, Sir William Herschel was one of the first to advocate the use of
fingerprinting in the identification of criminal suspects.

Forensic evidence is a discipline that functions within the parameters of the legal
system. Its purpose is to provide guidance to those conducting criminal investigation and
to supply to courts accurate information upon which they can rely in resolving criminal
and civil disputes. Forensic science, an amalgamation of almost all faculties of
knowledge, is an essential and efficient enabler in the dispensation of justice in criminal,

50
Lollia Paulina, also known as Lollia Paullina was a Roman Empress for six months in 38 as the third
wife and consort of the Roman emperor Caligula.

226
civil, regulatory and social contexts. It is defined as the application of science in
answering questions that are of legal interest.

In the contemporary modern world, forensic science is an advanced scientific

technique which is used in criminal and civil investigations and this science is capable of
answering important questions and forms an integrated part of criminal justice system.
The forensic evidence includes all well known techniques such as fingerprint analysis,
DNA analysis, ballistic, firearms or explosive culture etc. It helps to convict those guilty
of crime as well as can exonerate the innocent. Forensic evidence often helps to establish
the guilt or innocence of possible suspects. Fingerprint as a method of identification is
recognized throughout the world and is accepted by the judiciary. The fingerprints as
evidence are important because of the following features of the fingerprints. They are
unique, they are permanent, they are universal, they are inimitable, they are classifiable,
and they are frequently available in crime situations as evidence.

In India, the application of forensic science to crime investigation and trial has to
stand the limitation of law. The predominant questions that arises on the sustenance of
forensic evidence is depend upon at least three parameters viz. a) What is the
constitutional validity of such techniques? b) To what extent does the law allow the use
of forensic techniques in crime investigation? c) What is the evidentiary value of the
forensic information obtained from the experts?

This issue of DNA test was discussed at length in Gautam Kundu v. Bengal51,
where the division bench of apex court, inter alia, held as follows:- ―

(1) That courts in India cannot order blood test as matter of course

(2) There must be a strong prima facie case in that the husband must establish non -
access in order to dispel the presumption arising under section 112 of the
Evidence Act

(3) No one can be compelled to give sample of blood for analysis.

51
Gautam Kundu v. Bengal, (1993) 3 SCC 418

227
 However subsequently a full bench of the Supreme Court in Sharda v.
Dharmpal52, considered the power of a matrimonial court to order such test and clarified
that Goutam Kundu v. Bengal case is not an authority for the proposition that under no
circumstances the Court can direct that blood tests be conducted. It, having regard to the
future of the child, has, of course, sounded a note of caution as regard mechanical passing
of such order.

The introduction of the DNA technology has posed serious challenge to some
legal and fundamental rights of an individual such as “Right to privacy”, “Right against
Self-incrimination”. And this is the most important reason why courts sometimes are
reluctant in accepting the evidence based on DNA technology. Right to Privacy has been
included under Right to Life and Personal liberty or Article 21 of the Indian Constitution,
and Article 20(3) provides Right against Self- Incrimination which protects an accused
person in criminal cases from providing evidences against himself or evidence which can
make him guilty. But it has been held by the Supreme Court on several occasions that
Right to Life and Personal Liberty is not an absolute Right. Further, it is on this basis that
the constitutionality of the laws affecting Right to Life and Personal Liberty are upheld
by the Supreme Court which includes medical examination. However, on the basis
various courts in the country have allowed DNA technology to be used in the
investigation and in producing evidence. The refusal of the Supreme Court to dismiss the
Delhi High court‘s decision ordering veteran congress leader N.D. Tiwari to undergo the
DNA test is very important from the viewpoint of the admissibility of such evidence. In
this case, Rohit Shekhar has claimed to be the biological son of N.D. Tiwari, but N.D.
Tiwari is reluctant to undergo such test stating that it would be the violation of his Right
to privacy and would cause him public humiliation. But Supreme Court rejected this
point stating when the result of the test would not be revealed to anyone and it would
under a sealed envelope, there is no point of getting humiliated. Supreme Court further
stated that we want young man to get justice; he should not left without any remedy. It

52
Sharda v. Dharmpal, (2003) 4 SCC 493

228
would be very interesting to see that how courts in India would allow the admissibility of
DNA technology in the future53.

The Constitution of India under Articles 20(3) which is in the fundamental rights
chapter of the constitution, declare that no person accused of any offence shall be
compelled to be a witness against himself. Article 20(3) is based upon the presumption
drawn by law that the accused person is innocent till proved guilty. Article 20 (3) of the
Constitution of India guarantees fundamental right against self incrimination and guards
against forcible testimony of any witness. The fundamental right guaranteed under
Article 20 (3) is a protective umbrella against testimonial compulsion in respect of
persons accused of an offence to be witness against themselves. The protection is
available not only in respect of evidence given in a trial before Court but also at previous
stage. The protection against self-incrimination envisaged in Article 20 (3) is available
only when compulsion is used and not against voluntary statement, disclosure or
production of document or other material. It also protects the accused by shielding him
from the possible torture during investigation in police custody. Criminal law considers
an accused as innocent until his guilt is established beyond reasonable doubt54. This right
has been taken to ensure that a person is not bound to answer any question or produce
any document or thing if that material would have the tendency to expose the person to
conviction for a crime.55.

In Indian context, the call for DNA test on civil side is generally made to settle
the paternity issue involved in cases of divorce, maintenance, inheritance and succession
etc. It is noteworthy that Section 112 provides for the legitimacy of a child born during
wedlock and the only ground to rebut this presumption is non access of the husband.
Thus at one point of time it was an issue before the court dealing with paternity issues
whether such test could be ordered.

53
The Role of DNA in Criminal Investigation– Admissibility in Indian Legal System and Future
Perspectives , International Journal of Humanities and Social Science Invention ISSN (Online): 2319
– 7722, ISSN (Print): 2319 – 7714 www.ijhssi.org Volume 2 Issue 7 July 2013, PP.15-21. Retrieved
on 31-8-2017.
54
Justice U.C. Shrivastava, Immunity from Self-Incrimination under Art. 20(3) of the Constitution of
India,
55
McDougall, Justice Robert, The Privilege against Self-incrimination: a time for reassessment , Paper
presented at New South Wales Bar Association, 18 October 2008,

229
 At present in India there is no concrete law to govern issues of admissibility of
forensic technique. Some sections i.e. Sections 53, 54, 53(A), 164(A) of Code of
Criminal procedure govern science and technology issue to certain extend. As such it is
completely left on judicial discretion either to permit DNA test or to deny any such
request. Such a condition creates confusion and uncertainty over subordinate judiciary.

In Asit Kapoor v. Union of India56, it was held that no party to a legal proceeding
can be compelled for any scientific test against his/her will as it has effect of infringing
upon his right to privacy. Some important guidelines are issued in Gautama Khandu vs.
State of West Bengal & Anr.57, which is summed up as follows:

6. Matrimonial court has power to order a person to undergo some medical test.

7. Such order wouldn‘t be considered as violation of Right to personal liberty

enshrined under Article 21 of Indian Constitution.

8. Such a power is exercise by court when there is strong prima facie case and
sufficient material before the court. If the respondent refuses to medical
examination despite of the order of the court, then court will be entitled to draw
adverse inference against him.

In view of the above discussions, Indian judiciary had adopted forensic evidence
but it is legislative machinery which is lagging behind in assimilating scientific
development which plays important role not only to solve high profile cases but rape
cases and post-conviction matter also.

As discussed in previous chapter,on the aspect of DNA and self-incrimination, a

Constitution Bench of the Hon’ble Supreme Court, in Selvi v. State of Karnataka1, while
testing the validity of DNA tests on the anvil of Article 20(3) of the Constitution of India,
made following observation,

The matching of DNA samples is emerging as a vital tool for linking suspects to
specific criminal acts. It may also be recalled that as per the majority decision in Kathi

56
Asit Kapoor v. Union of India, AIR 2004 Del 2003
57
Khandu vs. State of West Bengal & Anr., AIR 1993 SC 2295

230
Kalu Oghad (AIR 1961 SC 1808), the use of material samples such as fingerprints for the
purpose of comparison and identification does not amount to a testimonial act for the
purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in
the nature of physical evidence does not face constitutional hurdles in the Indian context.

On application of DNA evidence in criminal cases, the test can be effectively used
in criminal cases for the following purpose. First, it assists in positively identifying the
perpetrators of crime, particularly in cases of sexual assault and homicide where
identification is often a central issue, secondly, to identify the remains of victims of
violent crimes. The most suitable application of DNA tests for these purposes is evident
in two popular cases namely, Santosh Kumar Singh v. State, establishing commission of
rape by the appellant and Surendra Koli v State of U.P. to identify dead bodies of victims.

6.5.7. The DNA Test and Right against Self Incrimination.

Further, Section 73 of the Indian Evidence Act4 empowers the court to direct any
person including an accused to allow his finger impressions to be taken. The Supreme
Court has also held that being compelled to give fingerprints does not violate the
constitutional safeguards given in Article 20(3). In The State of Bombay v. KathiKalu
Oghad and Other,, the court held that giving thumb impression, specimen signature,
blood, hair, semen etc. by the accused do not amount to ‘being a witness’ within the
meaning of the said Article. The accused, therefore, has no right to object to DNA
examination for the purposes of investigation and trial. The Bombay High Court in a
significant verdict in the case of Ramchandra Reddy and Ors., v. State of Maharashtra,
upheld the legality of the use Brain finger-printing, lie detector test and the use of truth
serum or narco-analysis. In Dinesh Dalmia v. State, the Madras High Court held that
subjecting an accused to narco-analysis does not tantamount to testimony by compulsion.
However, in a subsequent case, Selvi & Ors v. State of Karnataka & Anr. case, the
Supreme Court questioned the legitimacy of the involuntary administration of certain
scientific techniques for the purpose of improving investigation efforts in criminal cases.

In the above mentioned case, the Supreme Court held that brain mapping and
polygraph tests were inconclusive and thus their compulsory usage in a criminal

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investigation would be unconstitutional. The Code of Criminal Procedure, 1973 was
amended in 2005 to enable the collection of a host of medical details from accused
persons upon their arrest. Section 53 of the Criminal Procedure Code 1976 provides that
upon arrest, an accused person may be subjected to a medical examination if there are
“reasonable grounds for believing” that such examination will afford evidence as to the
crime. The scope of this examination was expanded in 2005 to include “the examination
of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific techniques
including DNA profiling and such other tests which the registered medical practitioner
thinks necessary in a particular case.

In Pantangi Balarama Venkata Ganesh v. state of Andhra Pradesh, the court held
that the DNA test on identity is admissible. However, the provision inserted through an
Amendment in 2005 is limited to rape cases only and this section also does not enable a
complainant to collect blood, semen, etc, for bringing criminal charges against the
accused; neither does it apply to complaint cases. In similar lines, Section 164A Code of
Criminal Procedure, 1973 provides for the medical examination of a woman who is an
alleged victim of rape within twenty four hours and such examination includes the DNA
profiling of the woman. Both the sections authorize any medical practitioner within the
meaning of Section 2(h) Indian Medical Council Act, 195610 to collect a DNA sample.
Under Indian Evidence Act, 1872, forensic report is considered as “opinion” tendered by
expert and an expert may be defined as a person who, by practice and observation, has
become experienced in any science or trade. Therefore, he is one who has devoted time
and study to a special branch of learning, and is thus especially skilled in that field
wherein he is called to give his opinion11. The credibility of an expert witness depends
on the reasons stated in support of conclusion and the tool technique and materials, which
form the basis of such conclusion. However, the court is free to disagree with the
conclusions drawn by the expert and rely on other evidences for the purpose of decision.

6.5.8. Admissibility of the DNA evidence

The admissibility of the DNA evidence before the court always depends on its
accurate and proper collection, preservation and documentation which can satisfy the

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court that the evidence which has been put in front it is reliable. There is no specific
legislation which is present in India which can provide specific guidelines to the
investigating agencies and the court, and the procedure to be adopted in the cases
involving DNA as its evidence. Moreover, there is no specific provision under Indian
Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science,
technology and forensic science issues. Due to lack of having any such provision, an
investigating officer has to face much trouble in collecting evidences which involves
modern mechanism to prove the accused person guilty. Section 53 of Code of Criminal
Procedure, 1973 authorizes a police officer to get the assistance of a medical practitioner
in good faith for the purpose of the investigation. But, it doesn‘t enable a complainant to
collect blood, semen etc. for bringing the criminal charges against the accused. The
amendment of Cr. P. C. by the Cr. P. C. (Amendment) Act, 2005 has brought two new
sections which authorize the investigating officer to collect DNA sample from the body
of the accused and the victim with the help of medical practitioner. These sections allow
examination of person accused of rape by medical practitioner and the medical
examination of the rape victim respectively. But the admissibility of these evidences has
remained in a state of doubt as the opinion of the Supreme Court and various High Courts
in various decisions remained conflicting. Judges do not deny the scientific accuracy and
conclusiveness of DNA testing, but in some cases they do not admit these evidences on
the ground of legal or constitutional prohibition and sometimes the public policy.

6.5.9. Aadhar Controversy

The discourse around Aadhaar has only aggravated since its inception, and one of
the primary contentions of the debate has been lack of a statutory force behind the
initiative. Amidst all the speculations, the Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Bill, 2016 was introduced on 3rd of March as a
money bill, on the grounds that subsidies and other benefits will be drawn from the
Consolidated Fund of India. The Bill seeks to resolve the contention of the lack of a
legislation backing Aadhaar. The Bill also allows for more schemes to be attached to
Aadhaar in future. Presently, there are a handful of schemes attached to the Aadhaar

233
which have been approved by the Supreme Court. The Bill is an ambitious task to
provide a framework for operationalization of Aadhaar.

Civil rights groups have opposed the Aadhaar biometric system, which is based
on centralized records of all ten fingerprints and iris scans, as their extensive use
allegedly encroach on the privacy rights of Indians. There is an apprehension that
Aadhaar is surveillance technology masquerading as secure authentication technology.
But the Government of India hold that the Aadhaar Act, passed in Parliament provides
the legal backing for making the biometric identification compulsory.

After coming into force of Aadhar biometric identification as compulsory in

India, there are several documents one need to link to your Aadhaar card. In order to
operate transaction in the following linking certain documents with Aadhaar card has
now been made compulsory by the government. These measures are being put into place
to ensure that benefits from all government schemes reach the people. The process is
relatively simple, and can be done both, online or offline.

The following are issues which are being discussed on the implementation of
Aadhaar linkage and privacy of individuals and the Government's ambitious unique
identification project, Aadhaar, has drawn flak from several sections of society. Aadhar is
an important document as it is a complete residence proof and identity proof. Details in
Aadhar card are easy to modify, physical possession is also not required and theirs is no
chance of getting it stolen or any misuse by any other person as Aadhar card is useless
without biometrics verification or One-Time-Password.

6.5.10. Arguments in favour of Aadhaar

1. Aadhaar would qualitatively restructure the role of the state in the social sector.

2. Aadhaar is the most widely held identity document in the country with around 92
crore people under it. Restricting Aadhar’s voluntary use would mean a majority
of the population will not be able to use it to access various social schemes.

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3. Aadhaar can help eliminate duplication and impersonation in muster rolls and
beneficiary lists, plugging the leaks that currently characterise most social welfare
initiatives.

4. It will impact nearly 1 crore workers under MGNREGA, who use Aadhaar to
withdraw their wages every month, and nearly 30,00,000 pensioners.

5. Countering the privacy argument, UIDAI says the data captured is secure and
encrypted right at the source and all biometrics are stored in the Government of
India’s servers with “world class security standards”

6. Aadhaar number shall also help to eliminate the duplicate cards and fake cards for
non-existent beneficiaries in the schemes.

7. “Aadhaar” shall be able to reduce the involvement of middlemen who siphon off
part of the subsidy.

6.5.11. Arguments against Aadhaar

The opposition to Aadhaar mostly centres on the issues of surveillance and

privacy. The wealth of personal information collected by the Aadhaar database could be
misused are unwarranted.

The biometrics database collected by UIDAI was not secure since private
agencies were involved in collecting the personal information of individuals without any
supervision by the government or its pertinent wings.

By collecting personal information and biometric data, the project violated the
individual’s right to privacy.

Instead of ensuring inclusion, it had become an instrument of exclusion by

denying services to people who didn’t enrol for it or chose not to.

There have been instances of errors in authentication. Such errors could make
Aadhaar exclusionary.

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 There is an ongoing debate on whether India and Indians need one number to bind
them all.

Aadhaar, the technological design, is different from Aadhaar Act, the legislation,
which is responsible for implementing the technology. While they are intertwined
inextricably, much of the privacy and surveillance concerns stem from the Act.

As per the UIDAI website, there is no provision to opt out of Aadhaar nor is it
possible to purge the citizen’s information from the database.

6.5.12. The Issues Raised by Human Rights Organisations

The arguments Aadhar making mandatory under the law, the following issues are
being raised by activists who argue that such large data base is subject to many legal
consequences and also data misuse.

1. For making Aadhar mandatory, critics have accused government of not initiating
a fruitful and convincing discussion on whether Aadhaar should be made
mandatory in India.

2. The Supreme Court of India itself asserted in 2013 that Aadhaar should be
voluntary, not mandatory. The case is still pending before he apex court.

3. The biggest impact of making Aadhar mandatory will be on people who rely on
food subsidies. An estimated 67 per cent of India’s population relies on the food
subsidies and benefits available for cereals due to the National Food Security Act
of 2013.

4. Since the Aadhar law has now struck down on violation of fundamental rights and
privacy invasion, there is a danger that several government schemes might find
themselves stuck, in the future.

5. Experts argue that the government’s move to make Aadhaar mandatory is a

violation of the Supreme Court order. It “unfairly expands the scope of Aadhaar
beyond welfare services” and “leaves citizens with no choice” but to not enrol.

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6. Experts also argued that with Aadhaar being made mandatory, different databases
are getting linked by a common ID, making personal information vulnerable to
hacking and government surveillance. Effectively, this makes every citizen
vulnerable.

7. UID doesn’t collect information on where or why Aadhaar is being used to verify
identity of an Aadhaar-card holder. The UID database has no information on the
reason or location of authentication. As per the UIDAI, apart from the moment of
authentication, no other information is recorded.

8. Aadhaar Act, 2016 states that information will not be disclosed except “in interest
of national security in pursuance of a direction of an officer not below the rank of
Joint Secretary to the Government of India specially authorised in this behalf by
an order of the Central Government.” But there is no specific definition of
‘national security’ in the Act. The government refused to define the scope of
“national security”, which means it has all the power to access someone’s data
without any judicial oversight.

9. Linking Aadhaar to all government and private services gives the government
access to large amount of data which it can use in the name of ‘national security’.

10. Another important hindrance is that in few cases, labourers and poor people, the
primary targets of the Aadhar process, often do not have clearly defined
fingerprints because of excessive manual labour. Even old people with “dry
hands” have faced difficulties. Weak iris scans of people with cataract have also
posed problems. In many cases, it is reported that agencies have refused to
register them, defeating the very aim of inclusion of poor and marginalized
people.

In the recent case58 on Aadhar ‘Right to Privacy is a fundamental right’

judgement by the Supreme Court, there still exists the issue of Aadhaar being valid or not
which is still pending. Much controversy has lit upon the conflict of Aadhaar,
specifically, The Aadhaar Act, 2016 and the Right to Privacy of every citizen of the
58
Justice K.S. Puttaswamy(Retd) ... v. Union Of India And Ors, Writ Petition (Civil) NO 494 of 2012

237
country being violated through it. The problems with the Aadhaar Act, 2016 in concern to
privacy are mainly comprised of two parts: firstly, Aadhaar Act making Aadhaar
compulsory for every citizen and also making its compulsory linkage to other services,
including PAN and phone numbers. It further makes an amendment to the Income Tax
Act wherein for tax returns to be processed, one needs to link their Aadhaar number to
their PAN. A failure to do this could also lead to invalidity of the respective PAN. These
legislations are a forced compulsion for the citizens to link their Aadhaar to these
documents which is a problem as Aadhaar inherently requires a lot of personal and
confidential information like biometrics, fingerprints, etc. which connects to the second
issue of data security. The Aadhaar Act, 2016 allows sharing of data under the Aadhaar
numbers for the purposes of “national security” which a vague and undefined term.
Further, Aadhaar is applicable to commercial purposes as well and has the participation
of private parties in its data access which leaves the citizens a huge risk of data leak given
that there are no existing privacy laws in India. The active government wants the Aadhaar
policy to continue and is gradually making Aadhaar mandatory for more documents, for
e.g., driving licence, which is in plan to also be mandatorily linked to Aadhaar.

In People’s Union for Civil Liberties v. Union of India59 concerning legislation

authorising telephone tapping that had been used to justify surveillance of several
politicians, the Supreme Court laid down guidelines concerning how such judgments
should be made when legislation concerns national security. In the 1994 case of R.
Rajagopal v State of Tamil Nadu60, the Supreme Court directly linked the right to privacy
with Article 21 of the Constitution and held that,

“the right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. A citizen has a right to safeguard the privacy of his
own, his family, marriage, procreation, motherhood, child bearing and education among
other matters. No one can publish anything concern the above matters without his consent
whether truthful or otherwise and whether laudatory or critical. If he does so, he would be

59
In People’s Union for Civil Liberties v Union of India (1997) 1 SCC 318
60
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

238
violating the right to privacy of the person concerned and would be liable in an action for
damages”.

Over the past several decades, judicial activism in India has developed precedent
wherein the right to privacy has been inferred through other articles of the Constitution.
On July 19, 2017 a nine judge bench of the Supreme Court, led by Chief Justice Khehar,
assembled to determine whether Indian citizens have a fundamental right to privacy
under our Constitution.

In the 21st century, it is rightly opined by many that a government that cannot or
will not protect its citizens’ privacy rights cannot credibly maintain a democratic regime
of equal treatment under the rule of law. Freedom of opinion and association; freedom of
religion, the ability to make choices and decisions autonomously in society free of
surrounding social pressure, including the right to vote — all of these depend on the
preservation of the “private sphere.”

But, unfortunately the Government of India speaking through its Attorney-

General, has repeatedly declared that it is the government’s position that Indian citizens
have no constitutional right of privacy. However, the pressure on the government very
much increased when the Supreme Court refused simultaneous applications by multiple
agencies demanding relief from the Supreme Court’s interim order limiting the use of
Aadhaar pending the Court’s final decision. By referring these government applications
to a constitutional bench of the court has assured Indians that a decision on their
fundamental rights will not be long delayed. The Attorney-General argued that the poor,
whose welfare is at stake in the continuance of subsidy payments and other benefits, must
be prepared to surrender their right of privacy, if any, in order to continue receiving
benefits. This argument was sharply rejected by the bench, which recognises that the poor
have the same rights as the rich, and interim as well as permanently, in any democratic
society. This is not that claiming, a conflict between the needs of the poor and a very few
who care about everyone’s fundamental right to privacy. The government’s most basic
obligation is to protect its citizens’ rights — both their right to sustenance and their right
to the privacy that enables freedom — equally.

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 The ultimate resolution of this present controversy must recognise both the need
for Aadhaar in order to provide efficient and honest government services to citizens and
the need for stringent rules concerning access to and security of citizens’ biometric data,
in order to preserve their privacy. The Supreme Court’s action ensured that the Union
government must respond to both halves of the problem. In particular, the Indian
Supreme Court is likely to find itself asking Government of India about what in Indian
and U.S. law is called the “doctrine of unconstitutional conditions”. Both Supreme Courts
have held that the government cannot condition receipt of public benefits on waiver of
fundamental rights. This is in sharp contradiction to the argument offered in the Supreme
Court this week by the counsel for Centre for Civil Society, when he told the bench that
“a person who has a right to privacy should be allowed to waive it for greater benefit.”
The good news is that the Supreme Court has shown it knows exactly what’s at stake. It
is worthwhile to note that the Supreme Court Constitutional Bench led by the Chief
Justice of India in a Writ Petition between Justice K S Puttaswamy (Retd) and another v.
Union of India61, held that citizens cannot be forced to produce his Aadhaar to avail
themselves of government welfare schemes and benefits. It had even hinted that the
government risked contempt of court if it chooses to continue to make the Aadhaar
number a mandatory condition.

However, On October 15, 2016, the Constitution Bench had extended the
voluntary use of Aadhaar cards to the Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA), pensions schemes, Employee Provident Fund and the
Prime Minister Jan Dhan Yojana. The Bench was modifying an August 2015 order
restricting Aadhaar use to only PDS and LPG distribution.

The Supreme Court stated62 that the six schemes mentioned in the previous orders
are the public distribution scheme (PDS), LPG distribution scheme, the Mahatma Gandhi
National Rural Employment Guarantee Scheme (MGNREGS), National Social
Assistance Programme (Old age pensions, widow pensions, disability pensions), the

61
Per H.L. Dattu, CJI, on 15th October 2015 Writ Petition (Civil) NO 494 OF 2012 between Justice K
S Puttaswamy (Retd) and another v Union of India,
62
Orders dated 15.12.2017 in Writ Petition (Civil) NO 494 OF 2012 between Justice K S Puttaswamy
(Retd) and another v Union of India

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Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund
Organisation (EPFO).

In continuation of the interim orders in Aadhaar case, On 27 March 2017, the

court affirmed that Aadhaar cannot be mandatory for availing benefits under welfare
schemes, though it can be mandatory for other purposes (such as income tax filings, bank
accounts etc). On June 9, 2017, it partially read down Section 139AA of the Income Tax
Act that mandated an individual to link their Aadhaar for filing their Income Tax Returns.
On 11 August 2015, the Supreme Court had directed the government to widely publicise
in print and electronic media that Aadhaar is not mandatory for any welfare scheme.

As of now there is no specific law on personal data protection. However, a draft

bill which has been prepared as model by the Centre for Internet Society has tried to
define what sensitive personal data is; and according to them sensitive personal data”
means personal data as to the data subject’s –

(i) Biometric data;

(ii) Deoxyribonucleic acid data;

(iii) Sexual preferences and practices;

(iv) Medical history and health;

(v) Political affiliation;

(vi) Commission, or alleged commission, of any offence;

(vii) Ethnicity, religion, race or caste; and

(viii) Financial and credit information

The draft provides for collection of personal data with prior informed consent and
also subject to certain conditions contained in the future Act to be enacted. The draft also
provides for transfer of data, regulation of disclosure of personal data either with our
without prior consent of the person concerned. The draft aims at constitution of Data
Protection Authority with powers and functions of such authority together with

241
conditions of service. Having passed such law, the Data Protection Authority shall be The
Data Protection Authority shall be deemed to be a civil court for the purposes of section
195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every
proceeding before the Data Protection Authority shall be deemed to be a judicial
proceeding within the meaning of section 193 and section 228 and for the purposes of
section 196 of the Indian Penal Code, 1860 (45 of 1860).

In view of the gravity and importance of this, the Government of India inches
closer towards enacting a law for data protection, an expert committee appointed by the
government of India began its public consultation process for feedback before it drafts
the law. The committee of experts chaired by Justice B N Srikrishna will be holding four
public consultations, starting with one in New Delhi followed by Hyderabad), Bengaluru,
and Mumbai to start with. The expert committee headed by Justice Srikrishna , a former
Judge of the apex court, has Department of Telecom Secretary Aruna Sundararajan,
Unique Identification Authority of India head Ajay Bhushan Pandey, MeitY Additional
Secretary Ajay Kumar, Indian Institute of Technology-Raipur Director Prof Rajat Moona,
National Cybersecurity Coordinator Gulshan Rai, Indian Institute of Management-Indore
Director Prof Rishikesha Krishnan, Vidhi Centre for Legal Policy's Arghya Sengupta and
Data Security Council of India's Rama Vedashree as its members. The committee headed
by Justice B N Srikrishna (retired) to look into various aspects of data protection it is
expected and in accordance with the information given by the Attorney General of India
to the Supreme Court63, the committee will finalise its report by March, 2018.

In view of the above, in the pending case before the Supreme Court on Aadhaar,
the issues before apex court are:

1. Whether a citizen has a right of choice, i.e, right to refuse to give biometric data?
Can state coerce a citizen to part with the personal and biometric data? Is it not
violation of fundamental right of privacy under Part III (as per declaration in

63
Aadhaar hearing: Data protection panel’s report coming in March, Centre tells SC Report to look at
not only Aadhaar but all aspects of cyber security, says Attorney General K K Venugopal, The New
Indian Express, New Delhi , 24-1-2018.

242
 Puttaswamy judgment) and right against self incrimination guaranteed specifically
under Article 20(3)?

2. Why a citizen should not have a right of choice to be out of Aadhaar net?

3. Is it not breach of privacy of a billion people if their name, photo, address, gender,
date of birth, parent’s names, etc are exposed to and by anonymous sellers?

4. How can Centre go ahead with Aadhaar Act without having comprehensive
legislation on right to privacy and reasonable restrictions on it?

However, The Data (Privacy And Protection) Bill, 2017 was introduced in Lok
Sabha as Bill No. 100 of 2017 By Shri Baijayant Panda, M.P. which aims to codify and
safeguard the right to privacy in the digital age and constitute a Data Privacy Authority to
protect personal data and for matters connected therewith.

6.6. Conclusion:

To conclude the discussion on biometric identification vis-a-vis right to privacy

and right against self-incrimination, the question of possible data theft and data protection
of more than a billion Indians is at stake. The Supreme Court, while declaring right to
privacy is a fundamental right, paused the compelling conditions of completion of
linkage of Aadhaar with many activities like the banks, insurance companies, mobile
operators, public services to mention a few but many more. The pertinent questions that
arose with requires consideration, inter alia, legal are that whether the biometric data of a
more than billion people of India are safe.

It was reported by the Tribunal on January 4, 2018 that for Rs 500-00 an access to
a billion identities on UID database is possible. It was also reported that there are one
lakh illegal users of UID data, including anonymous groups created on WhatsApp.
Government websites and educational institutions displayed personal information along
with UID numbers in November 2017. Around 36 per cent people are excluded from
PDS in Rajasthan, because they could not authenticate due to finger print failures. In
Jharkhand, many starved to death because they could not link UID numbers with their
ration cards.

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 Biometrics is now as untested technology even by the UIDAI’s own admission.
Critics question the imposition of such technology on entire population exposing the
citizens to tracking. RTI Act mandates the state to be transparent to its people, but most
of the information is denied under privacy clause, whereas the UDI allows every
individual to be profiled and tracked by state and private companies.

In the next chapter, the researcher has concluded the entire research work carried
out by her and also came up with certain suggestions on the ongoing biometric
technology and personal identification and problems associated with the right to privacy
and right against self-incrimination in the biometric era.

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 CHAPTER – VII

CONCLUSION AND SUGGESTIONS

In this chapter the researcher initially summed up the research work and then
drawn conclusions of the research work; testified the hypotheses and finally the
researcher has made some concrete suggestions with concluding remarks.

7.1. Summing up of the Research Work

Biometrics is unique physical characteristics that can be used to identify

individuals. Common types of biometric data include fingerprints, voice prints, facial
recognition, and retina or iris scans, gait etc., however, there are some more extreme
technologies that have been developed in sciences which include electrocardiographic
rhythms and even body odour. In brief, a biometric system is a pattern recognition system
that recognizes a person on the basis of a feature vector derived from a specific
physiological or behavioural characteristic that the person possesses. Biometric
technologies are increasingly being used for surveillance purposes. Therefore naturally
and unsurprisingly, biometric technologies raise privacy issues of human beings all over
the world. One cannot be certain as to for which purpose such surveillance is specifically
applied by way of entrenching into with human rights relating to privacy.

Associating an identity with an individual can be called as personal identification.

The issue relating to resolving identity of any person can be divided into two
fundamentally distinct types of problems with different inherent complexities, the former
is verification and the later is recognition or identification. Authentication refers to
problem of confirming or denying person’s claimed identity that who the person is
claimed to be. Identification refers to problem of establishing person’s identity either
from a set of already known identities or otherwise.

In the second chapter of the present work, the researcher has thoroughly discussed
origin and development of biometrics. The use and utility of biometrics has much
influence on the lives of every person all over the world. In the contemporary world, the

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use of biometric technology totalises body characteristics to identify a person. A trace of
the use of biometrics from ancient times and biometrics appeared on the scene back in the
1800's. Alphonse Bertillon, a Perisian anthropologist and police desk clerk, developed a
method for identifying criminals that became known as Bertillonage, which identification
technique was a form of anthropometry, a system by which measurements of the body are
taken for classification and comparison purposes. This Bertillon system earlier used for
identifying persons by means of a detailed record of body measurements, physical
description, and photographs. The Bertillon system was superseded by the more accurate
procedure of fingerprinting and subsequently many more identification techniques were
emerged. The International Biometric Society the terms "Biometrics" and "Biometry"
have been used since early in the 20th century to refer to the field of development of
statistical and mathematical methods applicable to data analysis problems in the
biological sciences. Its main task has been the analysis of data from agricultural field
experiments, human clinical trials evaluating the relative effectiveness of competing
therapies for disease, or for the analysis of data from environmental studies on the effects
of air or water pollution on the appearance of human disease in a region or country.

History shows the existence of evidence of hand-“signed” cave paintings dating

back 31,000 years now. However, in the modern times, the biometric technology has
enormously developed serving both in positive and negative aspects of lives as well. In
the contemporary times, The word “Biometrics” means “life measurement” which is
usually related to the use of distinctive physiological characteristics to identify an
individual. A biometric system is a pattern recognition system which makes a personal
identification by determining the authenticity of a specific physiological or behavioral
characteristic possessed by the user. There emerged, in the recent times, more
scientifically verifiable biometric technologies. Biometric technologies are defined as the
“automated method of identifying or authenticating the identity of a human based on
physiological or behavioral characteristics”.

A number of biometric technologies have developed and are used to authenticate

the person’s identity. Common examples are (1) DNA matching – in this system of
chemical Biometric, the identification of an individual using the analysis of segments

246
from DNA. (2) Ear – This type is visual Biometric The identification of an individual
using the shape of the ear. (3) Eyes - Iris recognition – In this type of recognition which
is visual Biometric The use of the features found in the iris to identify an individual. (4)
Eyes - Retina recognition – This is also visual Biometric recognition. (5) Face
recognition – This is a visual Biometric, where, the analysis of facial features or patterns
for the authentication or recognition of an individual’s identity. (6) Fingerprint
recognition is a visual Biometric, where the use of the ridges and valleys (minutiae)
found on the surface tips of a human finger to identify an individual. In Finger geometry
recognition, which is a visual/spatial Biometric, where 3D geometry is used on the finger
to determine identity. (7) Gait – This is a behavioural Biometric. This technology is used
basing on an individual’s walking style or gait to determine identity. (8) Hand geometry
recognition is a visual/spatial Biometric, the use of the geometric features of the hand
such as the lengths of fingers and the width of the hand to identify an individual. (9)
Odour – This identification is based on Olfactory Biometric and in this, the individual’s
odor to determine identity. (10) Signature recognition is a visual/behavioural Biometric.
In this technique, the authentication of an individual by the analysis of handwriting style,
in particular the signature. There are two key types of digital handwritten signature
authentication, Static and Dynamic. Static is most often a visual comparison between one
scanned signature and another scanned signature, or a scanned signature against an ink
signature. (11) Typing recognition is a behavioural Biometric where, the use of the
unique characteristics of a person’s typing for establishing identity. (12) Vein recognition
is a type of biometrics that can be used to identify individuals based on the vein patterns
in the human finger or palm. (13) Voice / speaker recognition is another kind biometric
identification and there are two major applications of speaker recognition: (a) Voice -
speaker verification / authentication and (b) Voice - Speaker Identification.

In the third chapter, the researcher has extensively discussed the use of biometric
as evidence under Indian legal regime. It is evident that with the advent of new
technology, biometric data of human being has become accessible for utilization of it, at
various forums depending on its necessity. Biometric identifiers such as physiological
characteristics including fingerprint, palm veins, face recognition, DNA, palm print, hand
geometry, iris recognition, retina and odour/scent and behavioural characteristics such as

247
pattern of behaviour of a person, including, but not limited to typing rhythm, gait, and
voice. Biometric characteristics could play an increasing role as means for binding
electronic documents and transactions to a person and for identifying that person. Thus in
a biometric verification, by which a person can be uniquely identified and evaluate one or
more distinguishing biological traits. The use of biometrics as evidence brings important
legal issues, especially in remediation, reliability, and, of course, privacy. Legal
precedent on the use of biometrics technology is growing, with key cases stretching back
decades, and some recent cases have raised serious questions as to the admissibility of
biometric evidence in courts of law. A discussion on the emergence of the present legal
regime on use of biometric evidence and its application in legal regime requires a trace
into the history. The Judicial system provides the machinery for resolving the disputes.
No society can allow a situation to grow, where the impression prevails of there being no
redress for grievances. In ancient Indian context, India has a recorded legal history
starting from the Vedic ages and some sort of civil law system may have been in place
during the Bronze Age in India, around 3000 BCE and the Indus Valley civilization,
which is the period between 2600 BCE and 1900 BCE. Law as a matter of religious
prescriptions and philosophical discourse has an illustrious history in India. In the
medieval era, during the British Raj, the Privy Council acted as the highest court of
appeal. Cases before the council were adjudicated by the law lords of the House of Lords.
The state sued and was sued in the name of the British sovereign in her capacity as
Empress of India. During the shift from Mughal legal system, the advocates under that
regimen, “vakils”, too followed suit, though they mostly continued their earlier role as
client representatives.

The present Evidence Act governing evidence’s admissibility in the court of law
is a result of British period. Before this time, the rules of evidence were based upon the
local and traditional legal systems of different social groups residing in India. These rules
were different for almost every social group, caste, community etc which created chaos in
the legal prevalent legal system of that time. In Indian context, the Evidence Act was
drafted to codify principles of evidence and fundamental rule of evidence. In the recent
times, in view of the ongoing technological developments, while more and more
documents were electronically stored, the hearsay rule faced new challenges in the matter

248
of digital documents. In Anvar v. P. K. Basheer1, the Hon’ble Supreme Court noted that
“there is a revolution in the way that evidence is produced before the court”. When
electronically stored information was treated as a document in India before 2000,
secondary evidence of these electronic ‘documents’ was adduced through printed
reproductions or transcripts, and the authenticity was certified. The amended and new
provisions under Section 65-A of the Evidence Act provides that the contents of
electronic records may be proved in accordance with Section 65-B of the Evidence Act,
and Section 65-B of the Act. On the development of D.N.A. biometric identification, the
researcher has extensively discussed this aspect as applicable in the legal regime in
various developed countries such as England and the United states. The researcher has
also sufficiently discussed on the right guaranteed under Constitution under Article 20 (3)
which guarantees as fundamental right against self-incrimination. This aspect has been
discussed with reference to the application of DNA biometric identification vis-à-vis
right guaranteed under the Constitution as fundamental right. Decided case law on this
aspect has also presented in the third chapter of the present research work. On the
negative impact of right to privacy and right against self-incrimination, the Unique
Identification Authority of India (UIDAI) which was established through a notification
issued by the Planning Commission on 28 January 2009 is under challenge on the
grounds of violation of privacy of individuals. Appropriate discussion on this aspect has
been provided in subsequent chapters of the present work.

In the fourth chapter of the present research work, the researcher has discussed
extensively with regard to comparative legal provisions relating to right to privacy in
various countries of the world with specific reference to Indian context as recognized
under Indian Constitution and Judicial Activism in this regard as well. In order to
understand on this most important human right i.e., right to privacy, the researcher has
thoroughly surveyed international, inter-regional and other instruments relating to right to
privacy. This survey has paved way to understand the concept and application of right to
privacy in Indian context. The discussion starts from the Universal Declaration of Human

1
Anvar P.V. Vs P.K.Basheer and others. Supreme Court of India Appeal No 4228 of 2012

249
rights and different protocols to that of privacy rights in various countries, both
developed and the developing.

In Indian context on the controversial imposing Aadhaar biometric identification,

a milestone ruling by the Supreme Court was delivered, declaring that privacy is a
fundamental right for each of its more than 130 crores of citizens protected under the
country's constitution. On 24th August, 2017, the Supreme Court of India has pronounced
a far-reaching judgment on right to privacy in Justice K.S. Puttaswamy (Retd.), and Anr.
v. Union of India and others2. The nine-judge Constitution bench's decision will impact
everyday lives of Indians. In its far-reaching judgment, the apex court once again
retreated that right to privacy is a fundamental right as guaranteed under Indian
constitution and which can be read into Article 21 of the constitution.

In the fifth chapter, the researcher has discussed extensively on the comparative
legal provisions relating to right against self-incrimination in various countries of the
world and with special focus under Indian scenario along with available constitutional
provisions. According to Black’s dictionary, self-incrimination means acts or declarations
either as testimony at trial or prior to trial by which one implicates himself in a crime.
Further, The development of the accused’s right to counsel and to call witness, together
with the tradition that the accused should not be put under oath, culminated in a general
rule of compulsory silence in the 19th century3. It is established rule and practices that
right against self-incrimination is the act of exposing oneself "to an accusation or charge
of crime; to involve oneself or another person in a criminal prosecution or the danger
thereof. This concept is generally involves by making a statement. In legal definition,
incriminate means to charge with crime; to expose to an accusation or charge of crime; to
involve oneself or another in a criminal prosecution or the danger thereof; as, in the rule
that a witness is not bound to give testimony which would tend to incriminate him.
Incriminating admission is the term applies to a statement that leads towards establishing
guilt. Incriminating Circumstance is the situation that tends to prove that a person is

2
K.S. Puttaswamy (Retd.), and anr. v. Union of India and others, Writ Petition (Civil) No 494 OF
2012
3
C. Howard, Criminal Justice in England, London, 1931, 373; Heydon, J.D., “Confessions and
Silence” Sydney L.R. Vol.VII, 1976, 375 at 379-80.

250
guilty of committing a crime. Self-incrimination may occur as a result of interrogation or
may be made voluntarily.

The maxim right against self-incrimination is based on the presumption of

innocence, which was first applied in Nobokisto’s case4 where it was held that the golden
rule of criminal justice is that an accused is presumed to be innocent till he was proved to
be guilty; thus, the law required the accuser to prove all facts compatible with his guilt
and incompatible with his innocent. In this respect the law does not weigh in golden
scales the conflicting testimony tendered by each side, but takes its stand on the side of
the accused, it examines all facts and circumstances with due care and; caution not
abusing the liberties of those who are placed under its protection5. In India, under Article
20 (3) of the Constitution, the defendant has the right against self-incrimination, but
witnesses are not given the same right. Article 20(3) which embody this privilege read,
"No person accused of any offence shall be compelled to be a witness against himself".
Of various concepts, the common law is based on the principle that no one is bound to
criminate himself. The privilege against self-incrimination enables the maintenance of
privacy right of human beings as human right in the enforcement of criminal justice. It
also goes with the maxim Nemo Tenetur Seipsum Accusare i.e., “No man, not even the
accused himself can be compelled to answer any question, which may tend to prove him
guilty of a crime, he has been accused of.” Further, in India, In Indian context, the
presumption of innocence has been recognised both under the Indian Evidence Act, 1872
and the Criminal Procedure Code, 1973.

The researcher has discussed the right against self-incrimination provisions in the
basic laws of various countries such as the Bill of Rights lays down the foundation of
self-incrimination in the United States, the Fifth Amendment of the US Constitution. The
English privilege against self- incrimination is often represented as a principle of
fundamental importance in the law of criminal procedure and evidence. The basis of this
is that a logical implication of recognizing this privilege should be that a person cannot
be compelled, on pain of a criminal sanction, to provide information that could

4
Queen v. Nobokislo, (1867) 8 W.R. (Cri.) 87.
5
Queen K. Beharee (1865), 3 W.R. (Cri.) 23,26.

251
reasonably lead to his or her prosecution for a criminal offence. The Australian common
law privilege against self-incrimination entitles a person to refuse to answer any question,
or produce any document, if the answer or the production would tend to incriminate that
person6. Broadly referred to this as the privilege against self-incrimination, the concept
encompasses three distinct privileges: a privilege against self-incrimination in criminal
matters; a privilege against self-exposure to a civil or administrative penalty including
any monetary penalty which might be imposed by a court or an administrative authority,
but excluding private civil proceedings for damages and a privilege against self-exposure
to the forfeiture of an existing right. The Canadian Charter of Rights and Freedoms
protects witnesses against self-incrimination. Section 13 of the Charter states: “A witness
who testifies in any proceedings has the right not to have any incriminating evidence so
given used to incriminate that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence.” The Russian Constitution7 under
Clause 1 of the Article 518 grants everyone the right to not witness against either
themselves or against their spouses and close relatives. As the decision whether or not an
answer to a particular question would lead to self-incrimination is left to the discretion of
the person being questioned, this clause allows to remain silent at any time. Article 13 of
the Pakistan Constitution, which provide protection against double punishment and right
against self-incrimination. This Article provide for protection against double punishment
and self incrimination.- According to the constitutional mandate, no person-(a) shall be
prosecuted or punished for the same offence more than once; or (b) shall, when accused
of an offence, be compelled to be a witness against himself. The Bangladesh Constitution
provides protection against self-incrimination which is available under Bangladesh
Constitution. Clause (4) of Article 35 provides that “No person accused of any offence
shall be compelled to be a witness against himself.” However, sufficient discussion has
been made on the right against self-incrimination basing on the in Indian constitutional
and legal literature and developments.

6
Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 CLR 328, 335
7
The present Constitution of the Russian Federation pronounced was adopted by national referendum
on December 12, 1993. Russia's constitution came into force on December 25, 1993.
8
Article 51 (1) Nobody shall be obliged to testify against himself, his (her) spouse or close relatives,
the range of whom shall be determined by federal law.

252
 The sixth chapter is the main research work, carried out by the researcher. This
chapter on “Biometric Evidence - Right to Privacy and Right against Self- Incrimination,
A Critical Analysis” provides elaborate and extensive discussion on the right to privacy
and also right against self-incrimination. The researcher has introduced the genesis of
such human right i.e., the right to privacy and right against self-incrimination from the
universal point of view and drawn down to the constitutional and legal provisions of the
rights in Indian situation. The whole discussion is on the application of biometric
evidence and it’s both positive and negative operation on the citizens. The researcher has
discussed various international instruments on right to privacy and biometric
evidences/identifications. The discussion is both on the positive and negative side of the
biometric evidence vis-a-vis right to privacy and right against self-incrimination. On the
international scenario on right to privacy, at the apex of international human rights
instruments lies the Universal Declaration of Human Rights of 1948. Its provisions
dealing expressly with privacy are set out in Art 12, which states: “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks”. Further, in almost identical terms, Article 17 of
the ICCPR provides that (1) No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks
upon his honour and reputation and (2) everyone has the right to the protection of the law
against such interference or attacks.

The researcher has concentrated on two issues, firstly, the biometric identification
and right to privacy and secondly, biometric identification and right against self-
incrimination. In Indian context, right to privacy battle is the hot topic of the
contemporary Indian society. It was in 2009, the Government of India launched a new
identification programme that has gone on to become the largest biometric database in
the world. The programme, known as Aadhaar, has collected the names, addresses, phone
numbers—and perhaps more significantly, fingerprints, photographs, and iris scans—of
more than 130 crore people of the country. In the process, Aadhaar has taken on a role in
virtually all parts of day-to-day life in India, from schools to hospitals to banks, and has
opened up pathways to a kind of large-scale data collection that has never existed before.

253
Introduction of Aadhaar is a 12-digit unique identity number issued to all Indian residents
based on their biometric and demographic data. The data is collected by the Unique
Identification Authority of India (UIDAI), a statutory authority established in January
2009 by the Government of India, following the enctged provisions of the Aadhaar
(Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.
The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services)
Act, 2016 No. 18 of 2016). The declared purpose of the Act is to provide for, as a good
governance, efficient, transparent, and targeted delivery of subsidies, benefits and
services, the expenditure for which is incurred from the Consolidated Fund of India, to
individuals residing in India through assigning of unique identity numbers to such
individuals and for matters connected therewith or incidental thereto.

As of now, the Aadhaar experiment faces a significant threat from the Indian
Supreme Court. In 2017 August, the Supreme Court issued a unanimous decision that
found9, for the first time, a fundamental right to privacy in the Indian Constitution. The
decision has been widely celebrated by Aadhaar’s opponents, who believe that the
program is in conflict with the newly enshrined right. A nine-judge Bench of the
Supreme Court of India in its is rare and unanimous decision which is historic not only
because it has ruled that privacy is a fundamental right, but also because it has deepened
our understanding of fundamental rights as inalienable inherent rights in every human
being. Portions of the judgment that deal with data protection and privacy say that any
collection of personal information that would impact privacy must have a law to back it.
A corollary to this proposition is that all actions of the Unique Identification Authority of
India (UIDAI) prior to the coming into force of the 2016 Aadhaar Act, 2016 is of suspect
constitutionality. A further question arises on what can be done about such data that was
collected without a legal basis.

A Bench of 9-Judges has been constituted to look into questions relating to basic
human rights. A 3-Judge Bench of this Court was dealing with a scheme propounded by
the Government of India popularly known as the Aadhar card scheme. Under the said

9
Justice K S Puttaswamy (Retd.),and Another v. Union of India And Ors., Writ Petition (Civil) No.
494 OF 2012, Judgment pronounced on 24-8-2017.

254
scheme, the Government of India collects and compiles both demographic and biometric
data of the residents of this country to be used for various purposes. One of the grounds
of attack on the said scheme is that the very collection of such data is violative of the
“Right to Privacy10”.

In view of the above law for collection of biometric identification of every citizen
of the country, discussion about the application of DNA technology in the administration
of justice many implications in the use of this technology are in the air. It is held that the
importance of fast developing DNA technology and its impact on the rights of an
individual and its societal effect have created urgent need for getting acquainted with and
understanding the basic of modern genetic science for an effective role by all those who
are concerned with justice delivery system. However, the Supreme Court, on June 9,
2017, upheld the constitutional validity of section 139-AA of the Income Tax Act,
196111, which made the Act’s biometric-based identification project, Aadhaar, mandatory
for filing income tax returns and applying for Permanent Account Numbers (PANs). the
Supreme Court upholds Law Linking Aadhaar with PAN, Income Tax Act, 1961, as
amended, Section 139AA, India Income Tax PANs are account numbers issued in the
form of laminated cards and used for all transactions and correspondence with the
Income Tax Department. However, the Court’s ruling exempts PAN holders who are not
yet enrolled in Aadhaar from the provision under section 139AA(2) of the Act, which
requires PAN holders to use Aadhaar numbers, until constitutional challenges to Aadhaar
have been settled.

However, The Supreme Court has yet to decide whether privacy is a fundamental
right under article 21 of the Indian Constitution and whether Aadhaar violates this right
for lack of adequate safeguards in the collection of identity data. The Court will also be
ruling on the constitutionality of government notifications issued under the Aadhaar Act
that make Aadhaar mandatory for various programmes.

10
Justice K S Puttaswamy (Retd.),and Another v. Union of India And Ors., Writ Petition (Civil) No.
494 of 2012, Judgment pronounced on 24-8-2017.
11
139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of
July, 2017, quote Aadhaar number— (i) in the application form for allotment of permanent account
number; (ii) in the return of income.....

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7.2 CONCLUSION

Depending on the nature and implementation of a given biometric technology, the

use of such technology might violate not only the specific constitutional guaranteed
fundamental rights which, in many liberal democracies include right to privacy and also
the state’s international human rights obligations. The application and using biometric
technology to identify and monitor people raises human rights concerns. In such
application of biometric technologies, the personal and permanent nature of the
physiological features that are analyzed by a biometric system raising an inherent tension
with privacy interests. When biometrics are applied in a surveillance context, concerns
for privacy naturally increase. In theory, the permissibility of a government measure is
most commonly determined through a multi-stage analysis that requires the measure to
have, among other things, a “legitimate aim.”

7.3. Right to privacy

The right to privacy implies that there is a core of human personality that must be
free from intrusion. An individual must have the autonomy to make decisions. This
places the source of this right in the Constitution rather than statute. Second, it allows for
new kinds of protection. For instance, in situations of marital rape or rape of male
victims, the State may now need to justify its failure to protect victims from violations of
bodily autonomy. In the recent case, the Supreme Court declaring privacy as a
fundamental right is in consonance with the Right to Freedom. Privacy is a part of
individual liberty and no person shall be deprived of privacy without due process of law.

In the recent times in India, there has been much debate over the right to privacy,
as to whether or not the citizens have a Fundamental Right to Privacy in India. At the
time the Constitution was drafted, India was in the process of shrugging off foreign rule.
For centuries and the citizens had been systematically subjugated and denied their civil
liberties – not the least of which was personal privacy.

The Preamble of the Indian Constitution assures the dignity to every individual. It
also secures justice, liberty and, equality of status and of opportunity to all of Indian
citizens. By securing one’s liberty of thought, expression, belief, faith and worship, the

256
Preamble recognizes individuals’ personal autonomy and self-respect. In this kind of
ambiance, an individual realizes the inner and outer visions of his life. Similarly,
administering justice, equity, and good conscience is being considered as a per-condition
for executing the idea of human dignity. Furthermore, Article 21 guarantees Right to life
which does not mean mere animal existence but includes all those rights which are able
to develop an individual’s inner and outer contents. Article 21 provides right to life and
personal liberty. Considering the sacred motive of Human Rights, the Indian judiciary has
liberally interpreted the concept of Right to life and personal liberty.

On provisions respecting privacy under Code of Criminal Procedure and Indian

Evidence Act, it is mandatory for an Investigating Officer considers the production of any
particular document or thing, necessary or desirable for the purpose of investigation, he
may issue a written order to the person in whose possession or power such document or
thing is believed to be, for its production under Section 91 Code of Criminal Procedure12.
A Court can also issue summons for production of such document or thing under Section
91 Code of Criminal Procedure.

Coming to the biometrics and right to privacy, it is pertinent to discuss on the

recent case on Aadhar. In a significant development, the Supreme Court on September
23, 2013 ruled that Aadhar cards are not mandatory even as various state governments
insist on making it compulsory for a range of formalities, including marriage registration,
disbursal of salaries and provident fund among other public services. A bench of Justices
B.S. Chauhan and SA Bobde said, “The Centre and state governments must not insist on
Aadhar cards from citizens before providing them essential services.” The apex court said
that Aadhar card is not necessary for important services. The order passed in response to
a Public Interest Litigation pleading it to examine the ‘voluntary’ nature of the Aadhaar
cards. The Public Interest Litigation was filed by Justice K.S. Puttaswamy, a retired judge
of the Karnataka High Court, and sought an immediate stay on the implementation of the
scheme. It was contended that the scheme is violative of fundamental Rights under
Articles 14 (right to equality) and 21 (right to life and liberty). Although the government
has claimed that Aadhaar card is not mandatory, it is made compulsory for purposes like

12
Section 9 deals with the summons to produce document or other thing.

257
registration of marriages and others. Maharashtra government has recently said no
marriage will be registered if parties do not have Aadhaar cards.

But, fortunately, over the past 68 years, a strong jurisprudence has evolved
through case law, articulating the implicit right to privacy – almost, in the light of
newfound knowledge of the debates, in defiance of the wishes of the Constituent
Assembly. From all accounts, when the Supreme Court issues its judgment on the
Aadhaar case later this year, it is likely to follow the jurisprudence so far and uphold the
implicit right to privacy.

The question about the constitutional status of right to privacy arose in a bunch of
petitions, led by retired HC judge KS Puttaswamy, which in 2012, challenged the former
UPA government's decision to introduce the biometric data-enabled Aadhaar ID for
citizens. The petitioners included first Chairperson of National Commission for
Protection of Child Rights and Magsaysay Awardee Shanta Sinha, feminist researcher
Kalyani Sen Menon, and others in the said petition. The identity programme, first
announced in 2009, aims to issue every Indian with a 12-digit “Aadhaar” number,
corresponding to records that include a citizen’s fingerprints and eye scans. On this
biometric collection and compilation of database, the government says the database,
which began storing identity records in 2014, will allow it to streamline social
programmes in a country where one study has estimated about 84% of every rupee paid
as welfare is lost to corruption. In addition to challenges on the right to privacy and right
against self-incrimination, critics have raised concerns about possibility of breaches in a
database that could eventually store enough information to create a comprehensive
profile of a person’s lifestyle, purchases, friends, financial habits, and more.

7.4. Right against self-incrimination

Another enquiry in the present research work is relating to biometric

identification and the doctrine of ‘self-incrimination’ as enunciated in Article 20(3) of the
Constitution of India. The doctrine of immunity from self-incrimination is founded on the
presumption of innocence which characterises the English system of Criminal justice as
against inquisitorial system known to its ancient law and at present prevailing in France

258
and some other continental countries. Now it is for the prosecution to prove the guilt of
the accused beyond reasonable doubt and that the later need not made any statement if he
does not want to make this concept of the privilege is the outcome of the vicissitudes of a
complex history. The suspicion of all interrogations of the accused emerged initially as a
reaction to the practices of the Star’s Chamber in enforcing unpopular religions and
political laws even in the late 16th and early 17th centuries. This practice was not only
followed in England but in the United States by the English settlers as well and the same
practice, though already continued, was adopted with the introduction and transplantation
of criminal law of England into India. The accused persons were sometimes forced to
testify against themselves on account of the use of third degree methods inside the Court
to say of the use of such method outside the Court. The development of the accused’s
right to counsel and to call witness, together with the tradition that the accused should not
be put under oath, culminated in a general rule of compulsory silence in the 19th century.
During this period, the ‘privilege’ acquired its greatest significance since the enforced
silence could not logically give rise to an inference of guilt. The procedural, safeguard of
the right of the accused developed and modified in the centuries in the interest of justice
has, further, been modified with the passage and incorporation of Bill of Rights by many
democratic countries in their Constitutions.

The presumption of innocence of an accused person is a matter of law of

evidence. The burden of proof is thrown upon the prosecutor read with statutory
exception to prove the prisoner’s guilt beyond all imaginations of reasonable doubt. It
gives the present day recognised right of benefit of doubt to an individual accessed of a
crime. The presumption is also connected with false defence, failure of the accused to
explain the circumstances adverse to him, testimonial compulsion, coerced admission and
coniferous, mens-rea, circumstantial evidence and the strict construction of the statutes
relating to the crimes, criminals, punishment, procedure and the like. Thus, the
presumption of innocence is particularly a warning not to treat certain things improperly
as evidence13.

13
Wiggmore on Evidence, Vol. IX, 1940, at 407-9

259
 However, Article 20(3) strikes at confessions and self-incriminations but leaves
untouched other relevant facts. Merely because the accused fancied that by such answer
he would incriminate himself he could not claim the privilege of silence. It must appear
to the court that implications of the question in the setting in which it is asked, make it
evident that a responsive answer or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result. The apprehension of incrimination
from the answer sought must be substantial and real as distinguished from danger of
remote possibilities or fanciful flow of inference14. In Dhushyant Somal v. Sushma
Somal15, an attempt to use the guarantee against self-incrimination as protective umbrella
from any of the action to size.

The privilege against self-incrimination guarantees that men and women cannot
lawfully required to answer questions that will aid in convicting them of crime. The
privilege is widely regarded as both fundamental to human liberty and venerable in the
history of the development of civil rights. Some of the rights and privileges can
undoubtedly lay claim to antiquity, boasting a link with the Latin maxim Nemo Tenetur
Seipsum Accusare. The privilege against self-incrimination enables the maintenance
privacy of human being in the enforcement of criminal justice. It also goes with the
maxim Nemo Tenetur Seipsum Accusare16 i.e., ‘No man, not even the accused himself
can be compelled to answer any question, which may tend to prove him guilty of a crime,
he has been accused of.’ If the confession from the accused is derived from any physical
or moral compulsion irrespective of it is under hypnotic state of mind, it should stand to
be rejected by the court. There are several phases in the history of the creation of an
effective previlage against self-incrimination, and although there are points of
continbuity, there are alson real differences among them17.

The right against forced self-incrimination, also popularly known as the Right to
silence is enshrined in the Indian Constitution and the Code of Criminal Procedure

14
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025
15
Dhushyant Somal v. Sushma Somal, AIR 1981 SC 1026.
16
Black’s Law Dictionary,9th Edn
17
R. H. Helmholz, The Privilege Against Self-Incrimination: Its Origins and
Development, University of Chicago Press, 1997.

260
(Cr.P.C.). The protection contained in Article 20(3) of the Constitution of India is against
compulsion “to be a witness” against oneself. The Supreme Court gave a wide
interpretation of the expression “to be a witness” which was inclusive of oral,
documentary and testimonial evidence. The Court also held that the protection not only
covered testimonial compulsion in the Court room but also included compelled testimony
previously obtained from him18. The immunity as contained under Article 20 (3) is only
on making of such formal accusation that Clause (3) of Article becomes operative
covering that person with its protective umbrella against testimonial compulsion. It is to
be noted that a person cannot claim the protection if at the time he made the statement, he
was not an accused but becomes an accused thereafter. Further, the immunity Article 20
(3) of the Constitution does not apply to departmental inquiries into allegations against a
government servant, since there is no accusation of any offence within the meaning of
Article 20 (3)19. An examination of the decided case law as of now indicates that giving
thumb impressions, or impression of foot or palm or fingers or specimens of writings or
exposing body for the purpose of identification are not covered by the expression ‘to be a
witness’ under Article 20(3). Therefore, self-incrimination in context of Article 20(3)
only means conveying information based upon personal knowledge of the person giving
information. But where an accused is compelled to produce a document in his possession
which is not based on the personal knowledge of the accused, in such a case there is no
violation of Article 20(3). It was held in V.S Kuttan Pillai v. Ramakrishnan20, that search
of the premises occupied by the accused without the accused being compelled to be a
party to such a search would not be violative of the constitutional guarantee enshrined in
Article 20(3) of the constitution.

A brief survey on the right against self-incrimination in various countries gives us

clear understanding that such right is a universal human right. In the United States of
America, U.S.A., the fifth amendment of the U.S. constitution provides that “No person
shall be compelled in any Criminal Case, to be a Witness against Himself”. The privilege
against Self-Incrimination has been held to apply to witnesses as well as parties in

18
M.P Sharma v. Satish Chandra, AIR 1954 SC 300
19
Srikant Upadhya v. Union of India, AIR 1963, Pat. 38
20
In V.S Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185

261
proceedings—criminal and civil. It covers documentary evidence and oral evidence, and
extends to all disclosures including answers which by themselves support a criminal
conviction or furnish a link in the chain of evidence needed for a conviction. The right
against self-incrimination originated in England and Wales. Such laws as an extension of
the history of English Common Law, a body of law has grown around the concept of
providing individuals with the means to protect themselves from self-incrimination. In
Canada rights against self-incrimination exist pursuant to the Charter of Rights and
Freedoms. Section 11 of the Charter21 provides that one cannot be compelled to be a
witness in a proceeding against oneself. In Australia, as it is unusual among common law
countries in not having a statutory or Constitutional Charter or Bill of Rights, however,
common law courts have power to provide significant protection of human rights
principles including the rule of law, except where specifically overridden by legislation.
A well established principle of statutory interpretation in Australian courts is that
Parliament is presumed not to have intended to limit fundamental rights, unless it
indicates this intention in clear terms. In Coco v The Queen22 the High Court restated
this principle as follows: “The courts should not impute to the legislature an intention to
interfere with fundamental rights. Such an intention must be clearly manifested by
unmistakable and unambiguous language”.

Coming to the enacted procedural law, in the Cr.P.C, the legislature has guarded a
citizen’s right against self-incrimination. S. 161 (2) of the Code of Criminal Procedure
states that “every person is bound to answer truthfully all questions, put to him by [a
police] officer, other than questions the answers to which would have a tendency to
expose that person to a criminal charge, penalty or forfeiture”.

In India, Aadhaar a 12-digit unique identity number issued to all Indian residents
based on their biometric and demographic data. The data is collected by the Unique
Identification Authority of India (UIDAI), a statutory authority established in January

21
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the
Canadian Constitution that protects a person's legal rights in crimina and penal
matters. This includes both criminal as well as regulatory offences, as it provides
rights for those accused by the state for public offences.
22
Coco v The Queen (1994) 179 CLR 427 at 437

262
2009 by the government of India, under the jurisdiction of the Ministry of Electronics and
Information Technology, following the provisions of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, benefits and services) Act, 2016. Under the UID biometric
identification, individual’s face, iris and all finger prints are collected to identify a person
basing on multiple biometric techniques.

In recent Aadhar case, The Supreme Court ruled that privacy is a fundamental
right because it is intrinsic to the right to life. Right to Privacy is an integral part of Right
to Life and Personal Liberty guaranteed in Article 21 of the Constitution, it added that the
right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.
This has positive effect on the following issues:

1. The order affects all 134 crore Indians

2. The apex court overruled previous judgments on the privacy issue

3. It overruled an eight-judge bench judgment in the MP Sharma case and a six-

judge bench judgment in Kharak Singh case discussed in detail elsewhere in this
work

4. Both earlier judgments ruled that privacy is not a fundamental right.

5. The Government of India has enacted the Aadhaar (Targeted Delivery of

Financial and Other Subsidies, Benefits and Services) Act, 2016 and the same has
came into operation as well. The statement of objects and purpose of the Act
states that An Act to provide for, as a good governance, efficient, transparent, and
targeted delivery of subsidies, benefits and services, the expenditure for which is
incurred from the Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such individuals and for matters
connected therewith or incidental thereto. This Aadhaar (Targeted Delivery of
Financial and other Subsidies, benefits and services) Act, 2016 is a money bill of
the Parliament of India. It aims to provide legal backing to the Aadhaar unique
identification number project. It was passed on 11 March 2016 by the Lok Sabha.

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6. As per Section 2 (g) of Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act, 2016, “‘biometric information’ means
photograph, fingerprint, iris scan, or such other biological attributes of an
individual as may be specified by regulations.” The reference to “such other
biological attributes” makes it clear that voice sample and DNA profiling is
included under its ambit. Such Biometric databases have given birth to gnawing
present and future civil liberties and civil rights concerns. Biometric identification
exercise has been in use at least since 19th century. History of biometric profiling
is a history of violence and repression. A stolen password can be changed but
stolen fingerprints cannot be changed. On Aadhar biometrics, the petitioners in
the above case have raised certain very pertinent issues relating to right to privacy
and right against self-incrimination as guaranteed under the Constitution.

7. The Supreme Court court's nine-judge bench overruled previous judgments on the
issue- an eight-judge bench judgment in the MP Sharma case and a six-judge
bench judgment in Kharak Singh case, both of which had ruled that privacy is not
a fundamental right . The bench comprised Justices Khehar, J Chelameswar, S.A.
Bobde, R.K. Agrawal, R. F. Nariman, A. M. Sapre, D.Y. Chandrachud, Sanjay K.
Kaul and S. Abdul Nazeer.

7.5. Testing Of Hypotheses

For the purpose of systematic research of the problem of Biometric Evidence,

more particularly the concept of Right To Privacy and Right against Self- Incrimination,
A Critical Analysis, and its importance, the researcher has formulated hypothesis for the
research study. The hypotheses so formulated have been tested with required research
tools.

1. Biometric identification by way of collection of information in Aadhaar system is

believed to be entreating into the right to privacy of the citizens.

2. The use of biometrics as evidence in India may prove to be violative of the right
against self incrimination and right to privacy in certain circumstances which
would have adverse impact on the constitutionally guaranteed fundamental rights.

264
3. There is an apprehension among the people at large are that there is every
possibility of misuse of the biometric data leading to data theft, potential misuse
of private data.

4. The whole country, according to the human rights activists, is under surveillance,
scrutiny and the right to privacy is at stake.

5. The use of Biometric Evidence in certain cases bring home the guilt of the
accused, who screen or cause disappearance of evidence.

On hypothesis No. 1 i.e. Biometric identification by way of collection of

information in Aadhaar system is believed to be entreating into the right to privacy of the
citizens, the researcher has discussed the origin, development of biometric technology
with respect to identification, in the fist two chapters, traced the international scenario
and law of the land relating to it in the Fourth chapter, elaborately discussed the issue in
the sixth chapter and study conducted by the researcher clearly reveals that the biometric
collection of information from the citizens of the country i.e., the face recognition
technology, the iris recognition technology and the 10 fingers biometric recognition and
compilation of data bank is entering into the right to privacy as guaranteed to every
citizen of this country. Therefore, the hypothesis stands vindicated.

The second hypothesis formulated was that the use of biometrics as evidence in
India may prove to be violative of the right against self incrimination and right to privacy
in certain circumstances which would have adverse impact on the constitutionally
guaranteed fundamental rights. The researcher has discussed the origin, development of
biometric technology with respect to using it as evidence in the fist three chapters, traced
the international scenario and law of the land relating to Right against self incrimination
in the Fifth chapter, elaborately discussed the issue in the sixth chapter and The survey of
the legal provisions as contained in the Constitution of India and other enacted laws,
together with the Apex court judgments clearly depicted that that the use of biometric
evidence by the State shall invariably come in the way of the guaranteed right against
self-incrimination as guaranteed under Article 20 (3) of the Constitution. The decided
case law on this aspect by the Supreme Court also authenticates the sanctity of the

265
constitutional provisions, which cannot be damaged by way of any legislature. Therefore,
the hypothesis stands vindicated.

The researcher has enumerated hypothesis No. 3 that there is an apprehension

among the people at large are that there is every possibility of misuse of the biometric
data leading to data theft, potential misuse of private data. The research work carried out
by the researcher in the Sixth chapter has clearly indicated that there is every possibility
of data theft, data hacking and data manipulation and many other possibilities including
data sale. In fact, in the recent times, the personal data, as appeared in the newspapers,
was sold for very merge price i.e. multiple persons data for just Rs. 500/-. However, the
Government has denied and further stated that yet another virtual programme is
developed to check such hackings. Irrespective of all these considerations, there still
exists apprehension in the minds of the citizens of India that there is possibility of not
only data theft, hacking etc., but also misuse of the biometric data by the instrumentalities
much prejudicial to the guaranteed fundamental rights. Hence, the hypothesis stands
vindicated.

The fourth hypothesis formulated was that the whole country, according to the
human rights activists, is under surveillance, scrutiny and the right to privacy are at stake.
A recent observation clearly shows that the movements of every citizen are being under
scan, including their private life as well. The surveillance has gone to such magnitude,
that there is no room for privacy which is much against both the international tenet and
also the law of the land. Excessive surveillance make citizens feel embarrassed every
movement of life. Hence, the hypothesis is proved to be correct and therefore stands
vindicated.

The last hypothesis of the present research work is that the use of Biometric
Evidence in certain cases bring home the guilt of the accused, who screen or cause
disappearance of evidence. The research conducted by the researcher, as mentioned in the
chapters Three, five and Six and Decided cases on depict that the biometric evidences
have proved wrong and innocents were punished. There is no possibility of completely
relying on biometric evidence and there is no mechanism to trust the identification is fool
proof. In such circumstances, the application and use of biometric evidences in certain

266
cases bring home the guilt accused if he causes disappearance of evidence or an innocent
may be convicted. Therefore, the hypothesis stands vindicated.

7.6. Suggestions

Basing on the research carried by the researcher, the following workable

suggestions have been drawn.

Today, biometrics is at the centre of an emerging set of modern policies related to

determining one’s identity. The very establishing one’s identity is the key to achieving
any number of policy goals, such as identifying and catching criminals, providing certain
social security benefits to the beneficiaries, establishing efficiencies in the health care
sector and many more such as providing an identity deemed trustworthy for opening a
bank account. Therefore, in order to secure the apprehended data protection, necessary
statutory care and precautions are needed to be taken in data protection and limited use of
data for declared specific purposes only.

Although Biometrics is a near-global technology concern and India is not alone in

its deployment of biometric authentication within the course of identity management. In
the socio-economic environment like India, becomes important to extensively study the
policies deployed by the government and levels of acceptability by the citizens, while
considering their illiteracy, ignorance and a plethora of socio-economic factors, as it is
believed that valuation of policy constructs for digital biometrics systems comprises an
under-researched area in this country.

It is suggested that the biometric identifications may give fruitful results in

authentication of person and his presence in Offices, schools, establishments etc., where
there is a compelling condition to do so. But such use has to be limited only to the extent
of verification of attendance and the same should not be used as proofs which directly
attract either right to privacy or right against self-incrimination. The existing
investigatory provisions to prove guilt should be untouched on collection of evidences in
criminal cases.

267
 Data protection law in India is presently facing many problem and resentments
which is due the absence of proper legislative framework. Explosion of cyber crimes on a
global scale and many people of the country are becoming prays of such unscrupulous
practices. The theft and sale of stolen data is happening across vast continents where
physical boundaries pose no restriction or seem non-existent in this technological era.
India being the largest host of outsourced data processing in the world could become the
epicentre of cyber crimes this is mainly due absence of the appropriate legislation. The
Data Security Council of India (DSCI) and Department of Information Technology (DIT)
must rejuvenate its efforts in this regard.

The European Union Data Protection Directive regulates the processing of

personal data within the European Union and is an important component of the European
Union’s privacy and human rights law. Unlike the European Union, India does not have
any separate law which is designed exclusively for the data protection. However, the
courts on several occasions have interpreted "data protection" within the ambits of "Right
to Privacy" as implicit in Article 19 and 21 of the Constitution of India.

Government of India has constituted a Committee of Experts under the

Chairmanship of former Supreme Court Justice Shri B N Srikrishna to study various
issues relating to data protection in India and make specific suggestions on principles to
be considered for data protection in India and suggest a draft Data Protection Bill. The
objective is to “ensure growth of the digital economy while keeping personal data of
citizens secure and protected.” The Committee has submitted a whitepaper for getting
opinions. The White paper, inter alia, contains Data Protection principles are designed to
protect the personal information of individuals by restricting how such information can
be collected, used and disclosed. The committee invites data protection on the existing
two important models of data protection, the European Union model and others similar
to it, provide for a comprehensive data protection law couched in the rights based
approach; and the American marketplace model has sector specific data protection laws.
On the contrary, in the United States, privacy protection is essentially a “liberty
protection” i.e. protection of the personal space from government as the American
understanding of the “right to be let alone” has come to represent a desire for as little

268
government intrusion as possible. In respect of adoption, the European model may be
best suited to Indian context as in EU, the right to privacy is a fundamental right which
seeks to protect an individual’s dignity. The European Charter of Fundamental Rights
(EU Charter) recognises the right to privacy as well as the right to protection of personal
data, in Article 7 and Article 8, respectively.

The legal development in the discourse on privacy, especially informational

privacy legislative no much adequate attempts were made to secure informational privacy
in various sectors in India. However, the inclusions of the general data protection rules
under the Information Technology Act, 2000 as well as various sector specific laws on
data protection such as the Information Technology (Reasonable Security Practices and
Sensitive Personal Data or Information) Rules, 2011 (SPDI Rules) which Rules have
been issued under Section 43A of the IT Act. Section 43A, relates to “Compensation for
Failure to Protect Data” and enables the enactment of “reasonable security practices and
procedures” for the protection of sensitive personal data. It is suggested to implement
forthwith the rules on experimental method in order to secure privacy of individuals of
the country.

In India has implemented a systemic digital biometric identity system called

Aadhaar, or Universal ID (UID), is persistent and pervasive, and it is used across sectors
such as banking, health, and government. A significant majority of India’s residents now
have the Aadhaar ID and he first enrollees were given iris scans and registered in the
then-voluntary Aadhaar system for the stated purpose of granting them easier access to
subsidies from the government. Now that, Aadhaar has become almost compulsory to
every citizen of this country, an involuntary compelling condition on its citizens. This
requires re-examination.

The present “Aadhaar Act” enables the Government to collect identity

information from citizens including their biometrics, issue a unique identification number
or an Aadhaar Number on the basis of such biometric information, and thereafter provide
targeted delivery of subsidies, benefits and services to them. The Aadhaar Act also
provides for Aadhaar based authentication services wherein a requesting entity
(government/public and private entities/agencies) can request the Unique Identification

269
Authority of India (UIDAI) to verify/validate the correctness of the identity information
submitted by individuals to be able to extend services to them. The requesting entity is
required to obtain the consent of the individual before obtaining her identity information
for the purpose of authentication and must use her identity information only for the
purpose of authentication. The collection of data of a person from the data bank will
invariably affect the right to privacy as, either knowingly or unknowingly, once consent
is given to private entities/agencies, there is a clear possibility of misuse of identity of
person adverse to the rights of an individual.

The Aadhaar Act, 2016 establishes an authority, namely, the UIDAI, which is
responsible for the administration of the said Act. It also establishes a Central Identities
Data Repository (CIDR) which is database holding Aadhaar Numbers and corresponding
demographic and biometric information. Though, it is made to believe that The Aadhaar
Act and its regulations recognise various data protection principles, to ensure the security
of information and privacy of Aadhaar Number holders, still there were incidents of data
breach. Here, it is pertinent to know that The Tribune “purchased” a service being offered
by anonymous sellers over WhatsApp that provided unrestricted access to details for any
of the more than one billion Aadhaar numbers created in India thus far. It took just Rs
500, paid through Paytm, and ten minutes in which an “agent” of the group running the
racket created a “gateway” for this correspondent and gave a login ID and password. Lo
and behold, you could enter any Aadhaar number in the portal, and instantly get all
particulars that an individual may have submitted to the UIDAI (Unique Identification
Authority of India), including name, address, postal code (PIN), photo, phone number
and email. The tribune further wrote that that the investigations by The Tribune reveal
that the racket may have started around six months ago, when some anonymous groups
were created on WhatsApp. These groups targeted over three lakh village-level enterprise
(VLE) operators hired by the Ministry of Electronics and Information Technology
(ME&IT) under the Common Service Centres Scheme (CSCS) across India, offering
them access to UIDAI data. Then comes the question of data protection. Therefore, it is
invariably essential to prepare a law which shall be foolproof enough in data breach.

270
 Having the breach came to light following a report in The Tribune that claimed an
"agent" available on WhatsApp facilitated access by a login ID and password to the
particulars of any Aadhaar number, The Unique Identification Authority of India
(UIDAI) has registered an FIR for unauthorised access to Aadhaar data, such as names
and other demographic details, due to the misuse of the grievance redressal facility at the
office of the Surat district administration in Gujarat. Now the question arises as to what is
remedy available to a common man of the country. Therefore, until a perfect mechanism
has not been evolved and tested, the compulsion of Aadhaar needed to be suspended.

As of now, a batch of petitions challenging the Constitutional validity of the

Aadhaar Act, 2016 and 139 related notifications issued by the government are pending fir
final disposal and till such time, the apex court has ordered that there should not be
compulsion for Aadhaar linkage with any services such as Bank accounts and Insurance
operators etc. Here, it submitted that a close examination of the draft of White paper on
white paper of the Committee of experts on a Data Protection Framework for India is
thoroughly discussed, till such time the suspension of operation of Aadhaar linkage is
justified.

The surveillance of people every movement in public life has become common in
Indian context also. This surveillance is causing severe inconveniences to the people in
their day to day transactions in the open market. In the Catina of cases challenging the
Aadhaar scheme, issues such as the right to privacy and bodily integrity have been
brought to the fore. There is, however, another fundamental right which may see flagrant
violation in the event that a mandatory Aadhaar scheme receives the imprimatur of the
Supreme Court. This is the right against self-incrimination enshrined in article 20(3) of
the Constitution of India.

The threat to the right against self-incrimination in the age of a mandatory

Aadhaar can be seen in a scenario where a person is accused of an offence and the police
want to search her cell phone or laptop to obtain evidence against the accused. In such a
situation, the right against self-incrimination may protect the accused from being
compelled to divulge her password to her cell phone or computer to the authorities, if
such information could potentially expose her to a criminal charge or penalty. But the

271
reality today is that there are a growing number of technology users who are foregoing
conventional password protection, which can often be circumvented by computer
algorithm, for fingerprint or retina scan locks. Under such circumstances, it is relevant to
consider how this changing trend in digital security will be affected by the advent of the
mandatory all-pervasive surveillance heralded by the Aadhaar scheme. It is believed that
the biometric information of an Indian resident canvassed under the Aadhaar scheme be
used by the authorities to access a person’s digital data in spite of such password
protection or some other protective measures. This sensitive aspect is needed to be
addressed.

It is obvious that the Courts in India have repeatedly held that compelling an
accused to yield to investigation by allowing her voice to be recorded, her blood samples
and saliva to be tested, as well as allowing herself to be subjected to DNA testing, is
beyond the pale of protection afforded by the right against self-incrimination23.

Under the Aadhaar biometric scheme, information has already been collected and
stored in the government database before a person is even suspected of having committed
an offence, this obviates the need to issue a warrant which would otherwise be required to
procure such information. The government’s access to the biometric data of the person
who is only subsequently suspected of the commission of an offence may thus render the
accused person’s right against self-incrimination illusory, enabling the authorities to
access confidential and incriminatory information and use the same against the accused in
the course of criminal proceedings, with impunity. The provisions relating effecting the
constitutional right of right against self-incrimination, right to privacy and provision of
sharing the data needed to be suitably amended so that there shall not be any
permissibility for data sharing.

To conclude, the postmodern bio-power seen through intersections of law, body,

and techno-science, engenders virtual societies in the form of the database and the
apparatus. Although every invocation of society is tacitly a claim to comprehensiveness,
what emerges through bio-power is never more than a simulation of society. The

23
Justice K.S. Puttaswamy & Ors. v. Union of India & Ors.(W.P.(C) 494/2012); S.G.
Vombatkere & Anr. v. Union of India & Ors. (W.P.(C) 797/2016)

272
Supreme Court’s protection of the right against self-incrimination founders against its
greater faith in the truth produced by the decomposed body that is independent of the
conscious mind. A debate over the protection of individual rights that appear to be at risk
when the state seeks to create a universal database effectively marginalizes the needs and
desires of the numerically larger poor to be included in the database and thereby become
visible to state power. These outcomes are manifestations of society as apparatus.

273
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33. Snelick, R.,Uludag, U.Mink, A.[Indovina, M.Jain, A.K.,Large-Scale Evaluation of

Multimodal Biometric Authentication Using State-of-the-Art Systems, PAMI(27),
No. 3, March 2005

34. Stephen, J.F., “A History of Criminal Law ofEngland”, Vol.l, London, 1883.

35. Wayman, J.L.], Federal Biometric Technology Legislation,Computer(21), No. 2,

February 2000.

36. William Blackstone, “Commentaries on the Laws of England” (The Legal

Classics Library, 1765).

37. Williams, G. “The Proof of Guilt”, 3rd edn., 1963.

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REPORTS:

1. The Law Commission of India, 180th Report, Article 20(3) the Constitution of
India and the Right toSilence, 3, (2002).

2. The Law Commission of India, 87th Report, 1920

3. Law Commission of India, 185th Report on ILndian Evidencse Act, 1872

4. Report of the Group of Experts on Privacy, Planning Commission , Government

of India, 2012

INTERNATIONAL DOCUMENTS:

1. “The right to privacy in the digital age”, Sixty-eighth session Agenda item 69 (b),
68/167.

2. Article 8 of the European Convention on Human Rights.

3. The Fifth Amendment (Amendment V) to the United States Constitution.

4. The First Amendment (Amendment I) to the United States Constitution.

5. The Fourth Amendment (Amendment IV) to the United States Constitution

prohibits unreasonable searches and seizures.

WEBSITE:

1. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2866416.

2. wttp://www.metmuseum.org/ toah/ hd/chav hd_chav.htm Retrieved on 31-12-2017

3. https://www.ida.liu.se/~TDDD17/oldprojects/2009/projects/006.pdf. Retrieved on 18-12-

2017

4. http://www.biometrics.dod.mil/References/Biometrics_Timeline.aspx. Retrieved on 31-

12-2016

277
5. https://www.ukessays.com/essays/information-technology/the-social-issues-of-fingerprinting-
biometrics information-technology-essay.php?cref=1 (Retrieved on 31-12-2017)

6. The publicvoice.org/issues_and_resources/privacy_01.html, Retrieved on 31-12-2017

7. http://plato.stanford.edu/entries/privacy/, Retrieved on 31-7-2017.

8. http://www.springerlink.com/content/jrp61378317v2571/, Retrieved on 31-7-2017.

9. http://www.routledgelaw.com/textbooks/9780415458467/downloads/sample.pdf, Retrieved on 31-

7-2017

10. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2866416. Retrieved on 15-7-2917

11. https://www.privacyinternational.org/sites/default/files/PAKISTAN%20REPORT%20HIGH%20R
ES 2020150721_0.pdf, retrieved on 31-7-2017

12. https://peoiews.army.mil/programs/ biometrics, accessed July 2017.

13. http://www.tn.gov.in/stationeryprinting/extraordinary/2010/305-Ex-IV-2.pdf

Legislation

Indian Evidence Act, 1872,

Code of Criminal Procedure, 1973,

Biometric Information Privacy Act

Human Rights Act (HRA), 1998, (United Kingdom)

Personal Information Protection and Electronic Documents Act (PIPEDA), Canada

Civil Code of the Russian Federation.

Indian Information Technology Act, 2000

Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016

278
News papers/Journals refered

Harward Law Review,

Melbourne University Law Review

The Financial Times,

The Tribune

All India Reporter (AIR)

Supreme Court Cases (SCC)

Supreme Court Reporter (SCR)

Criminal Law Journal

International Journal of Industrial Engineering and Management (IJIEM)

Journal Of Criminal Law And Criminology

Foreign Reports

Fourth Amendment (Amendment IV) to the United States Constitution

First Amendment (Amendment I) to the United States Constitution

Canadian Charter of Rights and Freedoms (Charter), 1984

279
BIOMETRICS AS EVIDENCE: RIGHT TO PRIVACY
AND RIGHT AGAINST SELF INCRIMINATION
-A CRITICAL ANALYSIS

By
Y. BINDU MADHAVI
Judicial Magistrate of First Class
Guntur.

Under the guidance of

Prof. N. NIRMALA
Professor of Law
Dr. B. R Ambedkar College of Law,
Andhra University, Visakhapatnam

THESIS SUBMITTED TO THE ANDHRA UNIVERSITY,

VISAKAPATNAM FOR THE AWARD OF THE DEGREE OF

DOCTOR OF PHILOSOPHY IN LAW

MARCH 2018
 CHAPTER – VII

CONCLUSION AND SUGGESTIONS

In this chapter the researcher initially summed up the research work and then
drawn conclusions of the research work; testified the hypotheses and finally the
researcher has made some concrete suggestions with concluding remarks.

7.1. Summing up of the Research Work

Biometrics is unique physical characteristics that can be used to identify

individuals. Common types of biometric data include fingerprints, voice prints, facial
recognition, and retina or iris scans, gait etc., however, there are some more extreme
technologies that have been developed in sciences which include electrocardiographic
rhythms and even body odour. In brief, a biometric system is a pattern recognition system
that recognizes a person on the basis of a feature vector derived from a specific
physiological or behavioural characteristic that the person possesses. Biometric
technologies are increasingly being used for surveillance purposes. Therefore naturally
and unsurprisingly, biometric technologies raise privacy issues of human beings all over
the world. One cannot be certain as to for which purpose such surveillance is specifically
applied by way of entrenching into with human rights relating to privacy.

Associating an identity with an individual can be called as personal identification.

The issue relating to resolving identity of any person can be divided into two
fundamentally distinct types of problems with different inherent complexities, the former
is verification and the later is recognition or identification. Authentication refers to
problem of confirming or denying person’s claimed identity that who the person is
claimed to be. Identification refers to problem of establishing person’s identity either
from a set of already known identities or otherwise.

In the second chapter of the present work, the researcher has thoroughly discussed
origin and development of biometrics. The use and utility of biometrics has much
influence on the lives of every person all over the world. In the contemporary world, the

245
use of biometric technology totalises body characteristics to identify a person. A trace of
the use of biometrics from ancient times and biometrics appeared on the scene back in the
1800's. Alphonse Bertillon, a Perisian anthropologist and police desk clerk, developed a
method for identifying criminals that became known as Bertillonage, which identification
technique was a form of anthropometry, a system by which measurements of the body are
taken for classification and comparison purposes. This Bertillon system earlier used for
identifying persons by means of a detailed record of body measurements, physical
description, and photographs. The Bertillon system was superseded by the more accurate
procedure of fingerprinting and subsequently many more identification techniques were
emerged. The International Biometric Society the terms "Biometrics" and "Biometry"
have been used since early in the 20th century to refer to the field of development of
statistical and mathematical methods applicable to data analysis problems in the
biological sciences. Its main task has been the analysis of data from agricultural field
experiments, human clinical trials evaluating the relative effectiveness of competing
therapies for disease, or for the analysis of data from environmental studies on the effects
of air or water pollution on the appearance of human disease in a region or country.

History shows the existence of evidence of hand-“signed” cave paintings dating

back 31,000 years now. However, in the modern times, the biometric technology has
enormously developed serving both in positive and negative aspects of lives as well. In
the contemporary times, The word “Biometrics” means “life measurement” which is
usually related to the use of distinctive physiological characteristics to identify an
individual. A biometric system is a pattern recognition system which makes a personal
identification by determining the authenticity of a specific physiological or behavioral
characteristic possessed by the user. There emerged, in the recent times, more
scientifically verifiable biometric technologies. Biometric technologies are defined as the
“automated method of identifying or authenticating the identity of a human based on
physiological or behavioral characteristics”.

A number of biometric technologies have developed and are used to authenticate

the person’s identity. Common examples are (1) DNA matching – in this system of
chemical Biometric, the identification of an individual using the analysis of segments

246
from DNA. (2) Ear – This type is visual Biometric The identification of an individual
using the shape of the ear. (3) Eyes - Iris recognition – In this type of recognition which
is visual Biometric The use of the features found in the iris to identify an individual. (4)
Eyes - Retina recognition – This is also visual Biometric recognition. (5) Face
recognition – This is a visual Biometric, where, the analysis of facial features or patterns
for the authentication or recognition of an individual’s identity. (6) Fingerprint
recognition is a visual Biometric, where the use of the ridges and valleys (minutiae)
found on the surface tips of a human finger to identify an individual. In Finger geometry
recognition, which is a visual/spatial Biometric, where 3D geometry is used on the finger
to determine identity. (7) Gait – This is a behavioural Biometric. This technology is used
basing on an individual’s walking style or gait to determine identity. (8) Hand geometry
recognition is a visual/spatial Biometric, the use of the geometric features of the hand
such as the lengths of fingers and the width of the hand to identify an individual. (9)
Odour – This identification is based on Olfactory Biometric and in this, the individual’s
odor to determine identity. (10) Signature recognition is a visual/behavioural Biometric.
In this technique, the authentication of an individual by the analysis of handwriting style,
in particular the signature. There are two key types of digital handwritten signature
authentication, Static and Dynamic. Static is most often a visual comparison between one
scanned signature and another scanned signature, or a scanned signature against an ink
signature. (11) Typing recognition is a behavioural Biometric where, the use of the
unique characteristics of a person’s typing for establishing identity. (12) Vein recognition
is a type of biometrics that can be used to identify individuals based on the vein patterns
in the human finger or palm. (13) Voice / speaker recognition is another kind biometric
identification and there are two major applications of speaker recognition: (a) Voice -
speaker verification / authentication and (b) Voice - Speaker Identification.

In the third chapter, the researcher has extensively discussed the use of biometric
as evidence under Indian legal regime. It is evident that with the advent of new
technology, biometric data of human being has become accessible for utilization of it, at
various forums depending on its necessity. Biometric identifiers such as physiological
characteristics including fingerprint, palm veins, face recognition, DNA, palm print, hand
geometry, iris recognition, retina and odour/scent and behavioural characteristics such as

247
pattern of behaviour of a person, including, but not limited to typing rhythm, gait, and
voice. Biometric characteristics could play an increasing role as means for binding
electronic documents and transactions to a person and for identifying that person. Thus in
a biometric verification, by which a person can be uniquely identified and evaluate one or
more distinguishing biological traits. The use of biometrics as evidence brings important
legal issues, especially in remediation, reliability, and, of course, privacy. Legal
precedent on the use of biometrics technology is growing, with key cases stretching back
decades, and some recent cases have raised serious questions as to the admissibility of
biometric evidence in courts of law. A discussion on the emergence of the present legal
regime on use of biometric evidence and its application in legal regime requires a trace
into the history. The Judicial system provides the machinery for resolving the disputes.
No society can allow a situation to grow, where the impression prevails of there being no
redress for grievances. In ancient Indian context, India has a recorded legal history
starting from the Vedic ages and some sort of civil law system may have been in place
during the Bronze Age in India, around 3000 BCE and the Indus Valley civilization,
which is the period between 2600 BCE and 1900 BCE. Law as a matter of religious
prescriptions and philosophical discourse has an illustrious history in India. In the
medieval era, during the British Raj, the Privy Council acted as the highest court of
appeal. Cases before the council were adjudicated by the law lords of the House of Lords.
The state sued and was sued in the name of the British sovereign in her capacity as
Empress of India. During the shift from Mughal legal system, the advocates under that
regimen, “vakils”, too followed suit, though they mostly continued their earlier role as
client representatives.

The present Evidence Act governing evidence’s admissibility in the court of law
is a result of British period. Before this time, the rules of evidence were based upon the
local and traditional legal systems of different social groups residing in India. These rules
were different for almost every social group, caste, community etc which created chaos in
the legal prevalent legal system of that time. In Indian context, the Evidence Act was
drafted to codify principles of evidence and fundamental rule of evidence. In the recent
times, in view of the ongoing technological developments, while more and more
documents were electronically stored, the hearsay rule faced new challenges in the matter

248
of digital documents. In Anvar v. P. K. Basheer1, the Hon’ble Supreme Court noted that
“there is a revolution in the way that evidence is produced before the court”. When
electronically stored information was treated as a document in India before 2000,
secondary evidence of these electronic ‘documents’ was adduced through printed
reproductions or transcripts, and the authenticity was certified. The amended and new
provisions under Section 65-A of the Evidence Act provides that the contents of
electronic records may be proved in accordance with Section 65-B of the Evidence Act,
and Section 65-B of the Act. On the development of D.N.A. biometric identification, the
researcher has extensively discussed this aspect as applicable in the legal regime in
various developed countries such as England and the United states. The researcher has
also sufficiently discussed on the right guaranteed under Constitution under Article 20 (3)
which guarantees as fundamental right against self-incrimination. This aspect has been
discussed with reference to the application of DNA biometric identification vis-à-vis
right guaranteed under the Constitution as fundamental right. Decided case law on this
aspect has also presented in the third chapter of the present research work. On the
negative impact of right to privacy and right against self-incrimination, the Unique
Identification Authority of India (UIDAI) which was established through a notification
issued by the Planning Commission on 28 January 2009 is under challenge on the
grounds of violation of privacy of individuals. Appropriate discussion on this aspect has
been provided in subsequent chapters of the present work.

In the fourth chapter of the present research work, the researcher has discussed
extensively with regard to comparative legal provisions relating to right to privacy in
various countries of the world with specific reference to Indian context as recognized
under Indian Constitution and Judicial Activism in this regard as well. In order to
understand on this most important human right i.e., right to privacy, the researcher has
thoroughly surveyed international, inter-regional and other instruments relating to right to
privacy. This survey has paved way to understand the concept and application of right to
privacy in Indian context. The discussion starts from the Universal Declaration of Human

1
Anvar P.V. Vs P.K.Basheer and others. Supreme Court of India Appeal No 4228 of 2012

249
rights and different protocols to that of privacy rights in various countries, both
developed and the developing.

In Indian context on the controversial imposing Aadhaar biometric identification,

a milestone ruling by the Supreme Court was delivered, declaring that privacy is a
fundamental right for each of its more than 130 crores of citizens protected under the
country's constitution. On 24th August, 2017, the Supreme Court of India has pronounced
a far-reaching judgment on right to privacy in Justice K.S. Puttaswamy (Retd.), and Anr.
v. Union of India and others2. The nine-judge Constitution bench's decision will impact
everyday lives of Indians. In its far-reaching judgment, the apex court once again
retreated that right to privacy is a fundamental right as guaranteed under Indian
constitution and which can be read into Article 21 of the constitution.

In the fifth chapter, the researcher has discussed extensively on the comparative
legal provisions relating to right against self-incrimination in various countries of the
world and with special focus under Indian scenario along with available constitutional
provisions. According to Black’s dictionary, self-incrimination means acts or declarations
either as testimony at trial or prior to trial by which one implicates himself in a crime.
Further, The development of the accused’s right to counsel and to call witness, together
with the tradition that the accused should not be put under oath, culminated in a general
rule of compulsory silence in the 19th century3. It is established rule and practices that
right against self-incrimination is the act of exposing oneself "to an accusation or charge
of crime; to involve oneself or another person in a criminal prosecution or the danger
thereof. This concept is generally involves by making a statement. In legal definition,
incriminate means to charge with crime; to expose to an accusation or charge of crime; to
involve oneself or another in a criminal prosecution or the danger thereof; as, in the rule
that a witness is not bound to give testimony which would tend to incriminate him.
Incriminating admission is the term applies to a statement that leads towards establishing
guilt. Incriminating Circumstance is the situation that tends to prove that a person is

2
K.S. Puttaswamy (Retd.), and anr. v. Union of India and others, Writ Petition (Civil) No 494 OF
2012
3
C. Howard, Criminal Justice in England, London, 1931, 373; Heydon, J.D., “Confessions and
Silence” Sydney L.R. Vol.VII, 1976, 375 at 379-80.

250
guilty of committing a crime. Self-incrimination may occur as a result of interrogation or
may be made voluntarily.

The maxim right against self-incrimination is based on the presumption of

innocence, which was first applied in Nobokisto’s case4 where it was held that the golden
rule of criminal justice is that an accused is presumed to be innocent till he was proved to
be guilty; thus, the law required the accuser to prove all facts compatible with his guilt
and incompatible with his innocent. In this respect the law does not weigh in golden
scales the conflicting testimony tendered by each side, but takes its stand on the side of
the accused, it examines all facts and circumstances with due care and; caution not
abusing the liberties of those who are placed under its protection5. In India, under Article
20 (3) of the Constitution, the defendant has the right against self-incrimination, but
witnesses are not given the same right. Article 20(3) which embody this privilege read,
"No person accused of any offence shall be compelled to be a witness against himself".
Of various concepts, the common law is based on the principle that no one is bound to
criminate himself. The privilege against self-incrimination enables the maintenance of
privacy right of human beings as human right in the enforcement of criminal justice. It
also goes with the maxim Nemo Tenetur Seipsum Accusare i.e., “No man, not even the
accused himself can be compelled to answer any question, which may tend to prove him
guilty of a crime, he has been accused of.” Further, in India, In Indian context, the
presumption of innocence has been recognised both under the Indian Evidence Act, 1872
and the Criminal Procedure Code, 1973.

The researcher has discussed the right against self-incrimination provisions in the
basic laws of various countries such as the Bill of Rights lays down the foundation of
self-incrimination in the United States, the Fifth Amendment of the US Constitution. The
English privilege against self- incrimination is often represented as a principle of
fundamental importance in the law of criminal procedure and evidence. The basis of this
is that a logical implication of recognizing this privilege should be that a person cannot
be compelled, on pain of a criminal sanction, to provide information that could

4
Queen v. Nobokislo, (1867) 8 W.R. (Cri.) 87.
5
Queen K. Beharee (1865), 3 W.R. (Cri.) 23,26.

251
reasonably lead to his or her prosecution for a criminal offence. The Australian common
law privilege against self-incrimination entitles a person to refuse to answer any question,
or produce any document, if the answer or the production would tend to incriminate that
person6. Broadly referred to this as the privilege against self-incrimination, the concept
encompasses three distinct privileges: a privilege against self-incrimination in criminal
matters; a privilege against self-exposure to a civil or administrative penalty including
any monetary penalty which might be imposed by a court or an administrative authority,
but excluding private civil proceedings for damages and a privilege against self-exposure
to the forfeiture of an existing right. The Canadian Charter of Rights and Freedoms
protects witnesses against self-incrimination. Section 13 of the Charter states: “A witness
who testifies in any proceedings has the right not to have any incriminating evidence so
given used to incriminate that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence.” The Russian Constitution7 under
Clause 1 of the Article 518 grants everyone the right to not witness against either
themselves or against their spouses and close relatives. As the decision whether or not an
answer to a particular question would lead to self-incrimination is left to the discretion of
the person being questioned, this clause allows to remain silent at any time. Article 13 of
the Pakistan Constitution, which provide protection against double punishment and right
against self-incrimination. This Article provide for protection against double punishment
and self incrimination.- According to the constitutional mandate, no person-(a) shall be
prosecuted or punished for the same offence more than once; or (b) shall, when accused
of an offence, be compelled to be a witness against himself. The Bangladesh Constitution
provides protection against self-incrimination which is available under Bangladesh
Constitution. Clause (4) of Article 35 provides that “No person accused of any offence
shall be compelled to be a witness against himself.” However, sufficient discussion has
been made on the right against self-incrimination basing on the in Indian constitutional
and legal literature and developments.

6
Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 CLR 328, 335
7
The present Constitution of the Russian Federation pronounced was adopted by national referendum
on December 12, 1993. Russia's constitution came into force on December 25, 1993.
8
Article 51 (1) Nobody shall be obliged to testify against himself, his (her) spouse or close relatives,
the range of whom shall be determined by federal law.

252
 The sixth chapter is the main research work, carried out by the researcher. This
chapter on “Biometric Evidence - Right to Privacy and Right against Self- Incrimination,
A Critical Analysis” provides elaborate and extensive discussion on the right to privacy
and also right against self-incrimination. The researcher has introduced the genesis of
such human right i.e., the right to privacy and right against self-incrimination from the
universal point of view and drawn down to the constitutional and legal provisions of the
rights in Indian situation. The whole discussion is on the application of biometric
evidence and it’s both positive and negative operation on the citizens. The researcher has
discussed various international instruments on right to privacy and biometric
evidences/identifications. The discussion is both on the positive and negative side of the
biometric evidence vis-a-vis right to privacy and right against self-incrimination. On the
international scenario on right to privacy, at the apex of international human rights
instruments lies the Universal Declaration of Human Rights of 1948. Its provisions
dealing expressly with privacy are set out in Art 12, which states: “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks”. Further, in almost identical terms, Article 17 of
the ICCPR provides that (1) No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks
upon his honour and reputation and (2) everyone has the right to the protection of the law
against such interference or attacks.

The researcher has concentrated on two issues, firstly, the biometric identification
and right to privacy and secondly, biometric identification and right against self-
incrimination. In Indian context, right to privacy battle is the hot topic of the
contemporary Indian society. It was in 2009, the Government of India launched a new
identification programme that has gone on to become the largest biometric database in
the world. The programme, known as Aadhaar, has collected the names, addresses, phone
numbers—and perhaps more significantly, fingerprints, photographs, and iris scans—of
more than 130 crore people of the country. In the process, Aadhaar has taken on a role in
virtually all parts of day-to-day life in India, from schools to hospitals to banks, and has
opened up pathways to a kind of large-scale data collection that has never existed before.

253
Introduction of Aadhaar is a 12-digit unique identity number issued to all Indian residents
based on their biometric and demographic data. The data is collected by the Unique
Identification Authority of India (UIDAI), a statutory authority established in January
2009 by the Government of India, following the enctged provisions of the Aadhaar
(Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.
The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services)
Act, 2016 No. 18 of 2016). The declared purpose of the Act is to provide for, as a good
governance, efficient, transparent, and targeted delivery of subsidies, benefits and
services, the expenditure for which is incurred from the Consolidated Fund of India, to
individuals residing in India through assigning of unique identity numbers to such
individuals and for matters connected therewith or incidental thereto.

As of now, the Aadhaar experiment faces a significant threat from the Indian
Supreme Court. In 2017 August, the Supreme Court issued a unanimous decision that
found9, for the first time, a fundamental right to privacy in the Indian Constitution. The
decision has been widely celebrated by Aadhaar’s opponents, who believe that the
program is in conflict with the newly enshrined right. A nine-judge Bench of the
Supreme Court of India in its is rare and unanimous decision which is historic not only
because it has ruled that privacy is a fundamental right, but also because it has deepened
our understanding of fundamental rights as inalienable inherent rights in every human
being. Portions of the judgment that deal with data protection and privacy say that any
collection of personal information that would impact privacy must have a law to back it.
A corollary to this proposition is that all actions of the Unique Identification Authority of
India (UIDAI) prior to the coming into force of the 2016 Aadhaar Act, 2016 is of suspect
constitutionality. A further question arises on what can be done about such data that was
collected without a legal basis.

A Bench of 9-Judges has been constituted to look into questions relating to basic
human rights. A 3-Judge Bench of this Court was dealing with a scheme propounded by
the Government of India popularly known as the Aadhar card scheme. Under the said

9
Justice K S Puttaswamy (Retd.),and Another v. Union of India And Ors., Writ Petition (Civil) No.
494 OF 2012, Judgment pronounced on 24-8-2017.

254
scheme, the Government of India collects and compiles both demographic and biometric
data of the residents of this country to be used for various purposes. One of the grounds
of attack on the said scheme is that the very collection of such data is violative of the
“Right to Privacy10”.

In view of the above law for collection of biometric identification of every citizen
of the country, discussion about the application of DNA technology in the administration
of justice many implications in the use of this technology are in the air. It is held that the
importance of fast developing DNA technology and its impact on the rights of an
individual and its societal effect have created urgent need for getting acquainted with and
understanding the basic of modern genetic science for an effective role by all those who
are concerned with justice delivery system. However, the Supreme Court, on June 9,
2017, upheld the constitutional validity of section 139-AA of the Income Tax Act,
196111, which made the Act’s biometric-based identification project, Aadhaar, mandatory
for filing income tax returns and applying for Permanent Account Numbers (PANs). the
Supreme Court upholds Law Linking Aadhaar with PAN, Income Tax Act, 1961, as
amended, Section 139AA, India Income Tax PANs are account numbers issued in the
form of laminated cards and used for all transactions and correspondence with the
Income Tax Department. However, the Court’s ruling exempts PAN holders who are not
yet enrolled in Aadhaar from the provision under section 139AA(2) of the Act, which
requires PAN holders to use Aadhaar numbers, until constitutional challenges to Aadhaar
have been settled.

However, The Supreme Court has yet to decide whether privacy is a fundamental
right under article 21 of the Indian Constitution and whether Aadhaar violates this right
for lack of adequate safeguards in the collection of identity data. The Court will also be
ruling on the constitutionality of government notifications issued under the Aadhaar Act
that make Aadhaar mandatory for various programmes.

10
Justice K S Puttaswamy (Retd.),and Another v. Union of India And Ors., Writ Petition (Civil) No.
494 of 2012, Judgment pronounced on 24-8-2017.
11
139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of
July, 2017, quote Aadhaar number— (i) in the application form for allotment of permanent account
number; (ii) in the return of income.....

255
7.2 CONCLUSION

Depending on the nature and implementation of a given biometric technology, the

use of such technology might violate not only the specific constitutional guaranteed
fundamental rights which, in many liberal democracies include right to privacy and also
the state’s international human rights obligations. The application and using biometric
technology to identify and monitor people raises human rights concerns. In such
application of biometric technologies, the personal and permanent nature of the
physiological features that are analyzed by a biometric system raising an inherent tension
with privacy interests. When biometrics are applied in a surveillance context, concerns
for privacy naturally increase. In theory, the permissibility of a government measure is
most commonly determined through a multi-stage analysis that requires the measure to
have, among other things, a “legitimate aim.”

7.3. Right to privacy

The right to privacy implies that there is a core of human personality that must be
free from intrusion. An individual must have the autonomy to make decisions. This
places the source of this right in the Constitution rather than statute. Second, it allows for
new kinds of protection. For instance, in situations of marital rape or rape of male
victims, the State may now need to justify its failure to protect victims from violations of
bodily autonomy. In the recent case, the Supreme Court declaring privacy as a
fundamental right is in consonance with the Right to Freedom. Privacy is a part of
individual liberty and no person shall be deprived of privacy without due process of law.

In the recent times in India, there has been much debate over the right to privacy,
as to whether or not the citizens have a Fundamental Right to Privacy in India. At the
time the Constitution was drafted, India was in the process of shrugging off foreign rule.
For centuries and the citizens had been systematically subjugated and denied their civil
liberties – not the least of which was personal privacy.

The Preamble of the Indian Constitution assures the dignity to every individual. It
also secures justice, liberty and, equality of status and of opportunity to all of Indian
citizens. By securing one’s liberty of thought, expression, belief, faith and worship, the

256
Preamble recognizes individuals’ personal autonomy and self-respect. In this kind of
ambiance, an individual realizes the inner and outer visions of his life. Similarly,
administering justice, equity, and good conscience is being considered as a per-condition
for executing the idea of human dignity. Furthermore, Article 21 guarantees Right to life
which does not mean mere animal existence but includes all those rights which are able
to develop an individual’s inner and outer contents. Article 21 provides right to life and
personal liberty. Considering the sacred motive of Human Rights, the Indian judiciary has
liberally interpreted the concept of Right to life and personal liberty.

On provisions respecting privacy under Code of Criminal Procedure and Indian

Evidence Act, it is mandatory for an Investigating Officer considers the production of any
particular document or thing, necessary or desirable for the purpose of investigation, he
may issue a written order to the person in whose possession or power such document or
thing is believed to be, for its production under Section 91 Code of Criminal Procedure12.
A Court can also issue summons for production of such document or thing under Section
91 Code of Criminal Procedure.

Coming to the biometrics and right to privacy, it is pertinent to discuss on the

recent case on Aadhar. In a significant development, the Supreme Court on September
23, 2013 ruled that Aadhar cards are not mandatory even as various state governments
insist on making it compulsory for a range of formalities, including marriage registration,
disbursal of salaries and provident fund among other public services. A bench of Justices
B.S. Chauhan and SA Bobde said, “The Centre and state governments must not insist on
Aadhar cards from citizens before providing them essential services.” The apex court said
that Aadhar card is not necessary for important services. The order passed in response to
a Public Interest Litigation pleading it to examine the ‘voluntary’ nature of the Aadhaar
cards. The Public Interest Litigation was filed by Justice K.S. Puttaswamy, a retired judge
of the Karnataka High Court, and sought an immediate stay on the implementation of the
scheme. It was contended that the scheme is violative of fundamental Rights under
Articles 14 (right to equality) and 21 (right to life and liberty). Although the government
has claimed that Aadhaar card is not mandatory, it is made compulsory for purposes like

12
Section 9 deals with the summons to produce document or other thing.

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registration of marriages and others. Maharashtra government has recently said no
marriage will be registered if parties do not have Aadhaar cards.

But, fortunately, over the past 68 years, a strong jurisprudence has evolved
through case law, articulating the implicit right to privacy – almost, in the light of
newfound knowledge of the debates, in defiance of the wishes of the Constituent
Assembly. From all accounts, when the Supreme Court issues its judgment on the
Aadhaar case later this year, it is likely to follow the jurisprudence so far and uphold the
implicit right to privacy.

The question about the constitutional status of right to privacy arose in a bunch of
petitions, led by retired HC judge KS Puttaswamy, which in 2012, challenged the former
UPA government's decision to introduce the biometric data-enabled Aadhaar ID for
citizens. The petitioners included first Chairperson of National Commission for
Protection of Child Rights and Magsaysay Awardee Shanta Sinha, feminist researcher
Kalyani Sen Menon, and others in the said petition. The identity programme, first
announced in 2009, aims to issue every Indian with a 12-digit “Aadhaar” number,
corresponding to records that include a citizen’s fingerprints and eye scans. On this
biometric collection and compilation of database, the government says the database,
which began storing identity records in 2014, will allow it to streamline social
programmes in a country where one study has estimated about 84% of every rupee paid
as welfare is lost to corruption. In addition to challenges on the right to privacy and right
against self-incrimination, critics have raised concerns about possibility of breaches in a
database that could eventually store enough information to create a comprehensive
profile of a person’s lifestyle, purchases, friends, financial habits, and more.

7.4. Right against self-incrimination

Another enquiry in the present research work is relating to biometric

identification and the doctrine of ‘self-incrimination’ as enunciated in Article 20(3) of the
Constitution of India. The doctrine of immunity from self-incrimination is founded on the
presumption of innocence which characterises the English system of Criminal justice as
against inquisitorial system known to its ancient law and at present prevailing in France

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and some other continental countries. Now it is for the prosecution to prove the guilt of
the accused beyond reasonable doubt and that the later need not made any statement if he
does not want to make this concept of the privilege is the outcome of the vicissitudes of a
complex history. The suspicion of all interrogations of the accused emerged initially as a
reaction to the practices of the Star’s Chamber in enforcing unpopular religions and
political laws even in the late 16th and early 17th centuries. This practice was not only
followed in England but in the United States by the English settlers as well and the same
practice, though already continued, was adopted with the introduction and transplantation
of criminal law of England into India. The accused persons were sometimes forced to
testify against themselves on account of the use of third degree methods inside the Court
to say of the use of such method outside the Court. The development of the accused’s
right to counsel and to call witness, together with the tradition that the accused should not
be put under oath, culminated in a general rule of compulsory silence in the 19th century.
During this period, the ‘privilege’ acquired its greatest significance since the enforced
silence could not logically give rise to an inference of guilt. The procedural, safeguard of
the right of the accused developed and modified in the centuries in the interest of justice
has, further, been modified with the passage and incorporation of Bill of Rights by many
democratic countries in their Constitutions.

The presumption of innocence of an accused person is a matter of law of

evidence. The burden of proof is thrown upon the prosecutor read with statutory
exception to prove the prisoner’s guilt beyond all imaginations of reasonable doubt. It
gives the present day recognised right of benefit of doubt to an individual accessed of a
crime. The presumption is also connected with false defence, failure of the accused to
explain the circumstances adverse to him, testimonial compulsion, coerced admission and
coniferous, mens-rea, circumstantial evidence and the strict construction of the statutes
relating to the crimes, criminals, punishment, procedure and the like. Thus, the
presumption of innocence is particularly a warning not to treat certain things improperly
as evidence13.

13
Wiggmore on Evidence, Vol. IX, 1940, at 407-9

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 However, Article 20(3) strikes at confessions and self-incriminations but leaves
untouched other relevant facts. Merely because the accused fancied that by such answer
he would incriminate himself he could not claim the privilege of silence. It must appear
to the court that implications of the question in the setting in which it is asked, make it
evident that a responsive answer or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result. The apprehension of incrimination
from the answer sought must be substantial and real as distinguished from danger of
remote possibilities or fanciful flow of inference14. In Dhushyant Somal v. Sushma
Somal15, an attempt to use the guarantee against self-incrimination as protective umbrella
from any of the action to size.

The privilege against self-incrimination guarantees that men and women cannot
lawfully required to answer questions that will aid in convicting them of crime. The
privilege is widely regarded as both fundamental to human liberty and venerable in the
history of the development of civil rights. Some of the rights and privileges can
undoubtedly lay claim to antiquity, boasting a link with the Latin maxim Nemo Tenetur
Seipsum Accusare. The privilege against self-incrimination enables the maintenance
privacy of human being in the enforcement of criminal justice. It also goes with the
maxim Nemo Tenetur Seipsum Accusare16 i.e., ‘No man, not even the accused himself
can be compelled to answer any question, which may tend to prove him guilty of a crime,
he has been accused of.’ If the confession from the accused is derived from any physical
or moral compulsion irrespective of it is under hypnotic state of mind, it should stand to
be rejected by the court. There are several phases in the history of the creation of an
effective previlage against self-incrimination, and although there are points of
continbuity, there are alson real differences among them17.

The right against forced self-incrimination, also popularly known as the Right to
silence is enshrined in the Indian Constitution and the Code of Criminal Procedure

14
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025
15
Dhushyant Somal v. Sushma Somal, AIR 1981 SC 1026.
16
Black’s Law Dictionary,9th Edn
17
R. H. Helmholz, The Privilege Against Self-Incrimination: Its Origins and
Development, University of Chicago Press, 1997.

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(Cr.P.C.). The protection contained in Article 20(3) of the Constitution of India is against
compulsion “to be a witness” against oneself. The Supreme Court gave a wide
interpretation of the expression “to be a witness” which was inclusive of oral,
documentary and testimonial evidence. The Court also held that the protection not only
covered testimonial compulsion in the Court room but also included compelled testimony
previously obtained from him18. The immunity as contained under Article 20 (3) is only
on making of such formal accusation that Clause (3) of Article becomes operative
covering that person with its protective umbrella against testimonial compulsion. It is to
be noted that a person cannot claim the protection if at the time he made the statement, he
was not an accused but becomes an accused thereafter. Further, the immunity Article 20
(3) of the Constitution does not apply to departmental inquiries into allegations against a
government servant, since there is no accusation of any offence within the meaning of
Article 20 (3)19. An examination of the decided case law as of now indicates that giving
thumb impressions, or impression of foot or palm or fingers or specimens of writings or
exposing body for the purpose of identification are not covered by the expression ‘to be a
witness’ under Article 20(3). Therefore, self-incrimination in context of Article 20(3)
only means conveying information based upon personal knowledge of the person giving
information. But where an accused is compelled to produce a document in his possession
which is not based on the personal knowledge of the accused, in such a case there is no
violation of Article 20(3). It was held in V.S Kuttan Pillai v. Ramakrishnan20, that search
of the premises occupied by the accused without the accused being compelled to be a
party to such a search would not be violative of the constitutional guarantee enshrined in
Article 20(3) of the constitution.

A brief survey on the right against self-incrimination in various countries gives us

clear understanding that such right is a universal human right. In the United States of
America, U.S.A., the fifth amendment of the U.S. constitution provides that “No person
shall be compelled in any Criminal Case, to be a Witness against Himself”. The privilege
against Self-Incrimination has been held to apply to witnesses as well as parties in

18
M.P Sharma v. Satish Chandra, AIR 1954 SC 300
19
Srikant Upadhya v. Union of India, AIR 1963, Pat. 38
20
In V.S Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185

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proceedings—criminal and civil. It covers documentary evidence and oral evidence, and
extends to all disclosures including answers which by themselves support a criminal
conviction or furnish a link in the chain of evidence needed for a conviction. The right
against self-incrimination originated in England and Wales. Such laws as an extension of
the history of English Common Law, a body of law has grown around the concept of
providing individuals with the means to protect themselves from self-incrimination. In
Canada rights against self-incrimination exist pursuant to the Charter of Rights and
Freedoms. Section 11 of the Charter21 provides that one cannot be compelled to be a
witness in a proceeding against oneself. In Australia, as it is unusual among common law
countries in not having a statutory or Constitutional Charter or Bill of Rights, however,
common law courts have power to provide significant protection of human rights
principles including the rule of law, except where specifically overridden by legislation.
A well established principle of statutory interpretation in Australian courts is that
Parliament is presumed not to have intended to limit fundamental rights, unless it
indicates this intention in clear terms. In Coco v The Queen22 the High Court restated
this principle as follows: “The courts should not impute to the legislature an intention to
interfere with fundamental rights. Such an intention must be clearly manifested by
unmistakable and unambiguous language”.

Coming to the enacted procedural law, in the Cr.P.C, the legislature has guarded a
citizen’s right against self-incrimination. S. 161 (2) of the Code of Criminal Procedure
states that “every person is bound to answer truthfully all questions, put to him by [a
police] officer, other than questions the answers to which would have a tendency to
expose that person to a criminal charge, penalty or forfeiture”.

In India, Aadhaar a 12-digit unique identity number issued to all Indian residents
based on their biometric and demographic data. The data is collected by the Unique
Identification Authority of India (UIDAI), a statutory authority established in January

21
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the
Canadian Constitution that protects a person's legal rights in crimina and penal
matters. This includes both criminal as well as regulatory offences, as it provides
rights for those accused by the state for public offences.
22
Coco v The Queen (1994) 179 CLR 427 at 437

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2009 by the government of India, under the jurisdiction of the Ministry of Electronics and
Information Technology, following the provisions of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, benefits and services) Act, 2016. Under the UID biometric
identification, individual’s face, iris and all finger prints are collected to identify a person
basing on multiple biometric techniques.

In recent Aadhar case, The Supreme Court ruled that privacy is a fundamental
right because it is intrinsic to the right to life. Right to Privacy is an integral part of Right
to Life and Personal Liberty guaranteed in Article 21 of the Constitution, it added that the
right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.
This has positive effect on the following issues:

1. The order affects all 134 crore Indians

2. The apex court overruled previous judgments on the privacy issue

3. It overruled an eight-judge bench judgment in the MP Sharma case and a six-

judge bench judgment in Kharak Singh case discussed in detail elsewhere in this
work

4. Both earlier judgments ruled that privacy is not a fundamental right.

5. The Government of India has enacted the Aadhaar (Targeted Delivery of

Financial and Other Subsidies, Benefits and Services) Act, 2016 and the same has
came into operation as well. The statement of objects and purpose of the Act
states that An Act to provide for, as a good governance, efficient, transparent, and
targeted delivery of subsidies, benefits and services, the expenditure for which is
incurred from the Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such individuals and for matters
connected therewith or incidental thereto. This Aadhaar (Targeted Delivery of
Financial and other Subsidies, benefits and services) Act, 2016 is a money bill of
the Parliament of India. It aims to provide legal backing to the Aadhaar unique
identification number project. It was passed on 11 March 2016 by the Lok Sabha.

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6. As per Section 2 (g) of Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act, 2016, “‘biometric information’ means
photograph, fingerprint, iris scan, or such other biological attributes of an
individual as may be specified by regulations.” The reference to “such other
biological attributes” makes it clear that voice sample and DNA profiling is
included under its ambit. Such Biometric databases have given birth to gnawing
present and future civil liberties and civil rights concerns. Biometric identification
exercise has been in use at least since 19th century. History of biometric profiling
is a history of violence and repression. A stolen password can be changed but
stolen fingerprints cannot be changed. On Aadhar biometrics, the petitioners in
the above case have raised certain very pertinent issues relating to right to privacy
and right against self-incrimination as guaranteed under the Constitution.

7. The Supreme Court court's nine-judge bench overruled previous judgments on the
issue- an eight-judge bench judgment in the MP Sharma case and a six-judge
bench judgment in Kharak Singh case, both of which had ruled that privacy is not
a fundamental right . The bench comprised Justices Khehar, J Chelameswar, S.A.
Bobde, R.K. Agrawal, R. F. Nariman, A. M. Sapre, D.Y. Chandrachud, Sanjay K.
Kaul and S. Abdul Nazeer.

7.5. Testing Of Hypotheses

For the purpose of systematic research of the problem of Biometric Evidence,

more particularly the concept of Right To Privacy and Right against Self- Incrimination,
A Critical Analysis, and its importance, the researcher has formulated hypothesis for the
research study. The hypotheses so formulated have been tested with required research
tools.

1. Biometric identification by way of collection of information in Aadhaar system is

believed to be entreating into the right to privacy of the citizens.

2. The use of biometrics as evidence in India may prove to be violative of the right
against self incrimination and right to privacy in certain circumstances which
would have adverse impact on the constitutionally guaranteed fundamental rights.

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3. There is an apprehension among the people at large are that there is every
possibility of misuse of the biometric data leading to data theft, potential misuse
of private data.

4. The whole country, according to the human rights activists, is under surveillance,
scrutiny and the right to privacy is at stake.

5. The use of Biometric Evidence in certain cases bring home the guilt of the
accused, who screen or cause disappearance of evidence.

On hypothesis No. 1 i.e. Biometric identification by way of collection of

information in Aadhaar system is believed to be entreating into the right to privacy of the
citizens, the researcher has discussed the origin, development of biometric technology
with respect to identification, in the fist two chapters, traced the international scenario
and law of the land relating to it in the Fourth chapter, elaborately discussed the issue in
the sixth chapter and study conducted by the researcher clearly reveals that the biometric
collection of information from the citizens of the country i.e., the face recognition
technology, the iris recognition technology and the 10 fingers biometric recognition and
compilation of data bank is entering into the right to privacy as guaranteed to every
citizen of this country. Therefore, the hypothesis stands vindicated.

The second hypothesis formulated was that the use of biometrics as evidence in
India may prove to be violative of the right against self incrimination and right to privacy
in certain circumstances which would have adverse impact on the constitutionally
guaranteed fundamental rights. The researcher has discussed the origin, development of
biometric technology with respect to using it as evidence in the fist three chapters, traced
the international scenario and law of the land relating to Right against self incrimination
in the Fifth chapter, elaborately discussed the issue in the sixth chapter and The survey of
the legal provisions as contained in the Constitution of India and other enacted laws,
together with the Apex court judgments clearly depicted that that the use of biometric
evidence by the State shall invariably come in the way of the guaranteed right against
self-incrimination as guaranteed under Article 20 (3) of the Constitution. The decided
case law on this aspect by the Supreme Court also authenticates the sanctity of the

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constitutional provisions, which cannot be damaged by way of any legislature. Therefore,
the hypothesis stands vindicated.

The researcher has enumerated hypothesis No. 3 that there is an apprehension

among the people at large are that there is every possibility of misuse of the biometric
data leading to data theft, potential misuse of private data. The research work carried out
by the researcher in the Sixth chapter has clearly indicated that there is every possibility
of data theft, data hacking and data manipulation and many other possibilities including
data sale. In fact, in the recent times, the personal data, as appeared in the newspapers,
was sold for very merge price i.e. multiple persons data for just Rs. 500/-. However, the
Government has denied and further stated that yet another virtual programme is
developed to check such hackings. Irrespective of all these considerations, there still
exists apprehension in the minds of the citizens of India that there is possibility of not
only data theft, hacking etc., but also misuse of the biometric data by the instrumentalities
much prejudicial to the guaranteed fundamental rights. Hence, the hypothesis stands
vindicated.

The fourth hypothesis formulated was that the whole country, according to the
human rights activists, is under surveillance, scrutiny and the right to privacy are at stake.
A recent observation clearly shows that the movements of every citizen are being under
scan, including their private life as well. The surveillance has gone to such magnitude,
that there is no room for privacy which is much against both the international tenet and
also the law of the land. Excessive surveillance make citizens feel embarrassed every
movement of life. Hence, the hypothesis is proved to be correct and therefore stands
vindicated.

The last hypothesis of the present research work is that the use of Biometric
Evidence in certain cases bring home the guilt of the accused, who screen or cause
disappearance of evidence. The research conducted by the researcher, as mentioned in the
chapters Three, five and Six and Decided cases on depict that the biometric evidences
have proved wrong and innocents were punished. There is no possibility of completely
relying on biometric evidence and there is no mechanism to trust the identification is fool
proof. In such circumstances, the application and use of biometric evidences in certain

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cases bring home the guilt accused if he causes disappearance of evidence or an innocent
may be convicted. Therefore, the hypothesis stands vindicated.

7.6. Suggestions

Basing on the research carried by the researcher, the following workable

suggestions have been drawn.

Today, biometrics is at the centre of an emerging set of modern policies related to

determining one’s identity. The very establishing one’s identity is the key to achieving
any number of policy goals, such as identifying and catching criminals, providing certain
social security benefits to the beneficiaries, establishing efficiencies in the health care
sector and many more such as providing an identity deemed trustworthy for opening a
bank account. Therefore, in order to secure the apprehended data protection, necessary
statutory care and precautions are needed to be taken in data protection and limited use of
data for declared specific purposes only.

Although Biometrics is a near-global technology concern and India is not alone in

its deployment of biometric authentication within the course of identity management. In
the socio-economic environment like India, becomes important to extensively study the
policies deployed by the government and levels of acceptability by the citizens, while
considering their illiteracy, ignorance and a plethora of socio-economic factors, as it is
believed that valuation of policy constructs for digital biometrics systems comprises an
under-researched area in this country.

It is suggested that the biometric identifications may give fruitful results in

authentication of person and his presence in Offices, schools, establishments etc., where
there is a compelling condition to do so. But such use has to be limited only to the extent
of verification of attendance and the same should not be used as proofs which directly
attract either right to privacy or right against self-incrimination. The existing
investigatory provisions to prove guilt should be untouched on collection of evidences in
criminal cases.

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 Data protection law in India is presently facing many problem and resentments
which is due the absence of proper legislative framework. Explosion of cyber crimes on a
global scale and many people of the country are becoming prays of such unscrupulous
practices. The theft and sale of stolen data is happening across vast continents where
physical boundaries pose no restriction or seem non-existent in this technological era.
India being the largest host of outsourced data processing in the world could become the
epicentre of cyber crimes this is mainly due absence of the appropriate legislation. The
Data Security Council of India (DSCI) and Department of Information Technology (DIT)
must rejuvenate its efforts in this regard.

The European Union Data Protection Directive regulates the processing of

personal data within the European Union and is an important component of the European
Union’s privacy and human rights law. Unlike the European Union, India does not have
any separate law which is designed exclusively for the data protection. However, the
courts on several occasions have interpreted "data protection" within the ambits of "Right
to Privacy" as implicit in Article 19 and 21 of the Constitution of India.

Government of India has constituted a Committee of Experts under the

Chairmanship of former Supreme Court Justice Shri B N Srikrishna to study various
issues relating to data protection in India and make specific suggestions on principles to
be considered for data protection in India and suggest a draft Data Protection Bill. The
objective is to “ensure growth of the digital economy while keeping personal data of
citizens secure and protected.” The Committee has submitted a whitepaper for getting
opinions. The White paper, inter alia, contains Data Protection principles are designed to
protect the personal information of individuals by restricting how such information can
be collected, used and disclosed. The committee invites data protection on the existing
two important models of data protection, the European Union model and others similar
to it, provide for a comprehensive data protection law couched in the rights based
approach; and the American marketplace model has sector specific data protection laws.
On the contrary, in the United States, privacy protection is essentially a “liberty
protection” i.e. protection of the personal space from government as the American
understanding of the “right to be let alone” has come to represent a desire for as little

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government intrusion as possible. In respect of adoption, the European model may be
best suited to Indian context as in EU, the right to privacy is a fundamental right which
seeks to protect an individual’s dignity. The European Charter of Fundamental Rights
(EU Charter) recognises the right to privacy as well as the right to protection of personal
data, in Article 7 and Article 8, respectively.

The legal development in the discourse on privacy, especially informational

privacy legislative no much adequate attempts were made to secure informational privacy
in various sectors in India. However, the inclusions of the general data protection rules
under the Information Technology Act, 2000 as well as various sector specific laws on
data protection such as the Information Technology (Reasonable Security Practices and
Sensitive Personal Data or Information) Rules, 2011 (SPDI Rules) which Rules have
been issued under Section 43A of the IT Act. Section 43A, relates to “Compensation for
Failure to Protect Data” and enables the enactment of “reasonable security practices and
procedures” for the protection of sensitive personal data. It is suggested to implement
forthwith the rules on experimental method in order to secure privacy of individuals of
the country.

In India has implemented a systemic digital biometric identity system called

Aadhaar, or Universal ID (UID), is persistent and pervasive, and it is used across sectors
such as banking, health, and government. A significant majority of India’s residents now
have the Aadhaar ID and he first enrollees were given iris scans and registered in the
then-voluntary Aadhaar system for the stated purpose of granting them easier access to
subsidies from the government. Now that, Aadhaar has become almost compulsory to
every citizen of this country, an involuntary compelling condition on its citizens. This
requires re-examination.

The present “Aadhaar Act” enables the Government to collect identity

information from citizens including their biometrics, issue a unique identification number
or an Aadhaar Number on the basis of such biometric information, and thereafter provide
targeted delivery of subsidies, benefits and services to them. The Aadhaar Act also
provides for Aadhaar based authentication services wherein a requesting entity
(government/public and private entities/agencies) can request the Unique Identification

269
Authority of India (UIDAI) to verify/validate the correctness of the identity information
submitted by individuals to be able to extend services to them. The requesting entity is
required to obtain the consent of the individual before obtaining her identity information
for the purpose of authentication and must use her identity information only for the
purpose of authentication. The collection of data of a person from the data bank will
invariably affect the right to privacy as, either knowingly or unknowingly, once consent
is given to private entities/agencies, there is a clear possibility of misuse of identity of
person adverse to the rights of an individual.

The Aadhaar Act, 2016 establishes an authority, namely, the UIDAI, which is
responsible for the administration of the said Act. It also establishes a Central Identities
Data Repository (CIDR) which is database holding Aadhaar Numbers and corresponding
demographic and biometric information. Though, it is made to believe that The Aadhaar
Act and its regulations recognise various data protection principles, to ensure the security
of information and privacy of Aadhaar Number holders, still there were incidents of data
breach. Here, it is pertinent to know that The Tribune “purchased” a service being offered
by anonymous sellers over WhatsApp that provided unrestricted access to details for any
of the more than one billion Aadhaar numbers created in India thus far. It took just Rs
500, paid through Paytm, and ten minutes in which an “agent” of the group running the
racket created a “gateway” for this correspondent and gave a login ID and password. Lo
and behold, you could enter any Aadhaar number in the portal, and instantly get all
particulars that an individual may have submitted to the UIDAI (Unique Identification
Authority of India), including name, address, postal code (PIN), photo, phone number
and email. The tribune further wrote that that the investigations by The Tribune reveal
that the racket may have started around six months ago, when some anonymous groups
were created on WhatsApp. These groups targeted over three lakh village-level enterprise
(VLE) operators hired by the Ministry of Electronics and Information Technology
(ME&IT) under the Common Service Centres Scheme (CSCS) across India, offering
them access to UIDAI data. Then comes the question of data protection. Therefore, it is
invariably essential to prepare a law which shall be foolproof enough in data breach.

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 Having the breach came to light following a report in The Tribune that claimed an
"agent" available on WhatsApp facilitated access by a login ID and password to the
particulars of any Aadhaar number, The Unique Identification Authority of India
(UIDAI) has registered an FIR for unauthorised access to Aadhaar data, such as names
and other demographic details, due to the misuse of the grievance redressal facility at the
office of the Surat district administration in Gujarat. Now the question arises as to what is
remedy available to a common man of the country. Therefore, until a perfect mechanism
has not been evolved and tested, the compulsion of Aadhaar needed to be suspended.

As of now, a batch of petitions challenging the Constitutional validity of the

Aadhaar Act, 2016 and 139 related notifications issued by the government are pending fir
final disposal and till such time, the apex court has ordered that there should not be
compulsion for Aadhaar linkage with any services such as Bank accounts and Insurance
operators etc. Here, it submitted that a close examination of the draft of White paper on
white paper of the Committee of experts on a Data Protection Framework for India is
thoroughly discussed, till such time the suspension of operation of Aadhaar linkage is
justified.

The surveillance of people every movement in public life has become common in
Indian context also. This surveillance is causing severe inconveniences to the people in
their day to day transactions in the open market. In the Catina of cases challenging the
Aadhaar scheme, issues such as the right to privacy and bodily integrity have been
brought to the fore. There is, however, another fundamental right which may see flagrant
violation in the event that a mandatory Aadhaar scheme receives the imprimatur of the
Supreme Court. This is the right against self-incrimination enshrined in article 20(3) of
the Constitution of India.

The threat to the right against self-incrimination in the age of a mandatory

Aadhaar can be seen in a scenario where a person is accused of an offence and the police
want to search her cell phone or laptop to obtain evidence against the accused. In such a
situation, the right against self-incrimination may protect the accused from being
compelled to divulge her password to her cell phone or computer to the authorities, if
such information could potentially expose her to a criminal charge or penalty. But the

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reality today is that there are a growing number of technology users who are foregoing
conventional password protection, which can often be circumvented by computer
algorithm, for fingerprint or retina scan locks. Under such circumstances, it is relevant to
consider how this changing trend in digital security will be affected by the advent of the
mandatory all-pervasive surveillance heralded by the Aadhaar scheme. It is believed that
the biometric information of an Indian resident canvassed under the Aadhaar scheme be
used by the authorities to access a person’s digital data in spite of such password
protection or some other protective measures. This sensitive aspect is needed to be
addressed.

It is obvious that the Courts in India have repeatedly held that compelling an
accused to yield to investigation by allowing her voice to be recorded, her blood samples
and saliva to be tested, as well as allowing herself to be subjected to DNA testing, is
beyond the pale of protection afforded by the right against self-incrimination23.

Under the Aadhaar biometric scheme, information has already been collected and
stored in the government database before a person is even suspected of having committed
an offence, this obviates the need to issue a warrant which would otherwise be required to
procure such information. The government’s access to the biometric data of the person
who is only subsequently suspected of the commission of an offence may thus render the
accused person’s right against self-incrimination illusory, enabling the authorities to
access confidential and incriminatory information and use the same against the accused in
the course of criminal proceedings, with impunity. The provisions relating effecting the
constitutional right of right against self-incrimination, right to privacy and provision of
sharing the data needed to be suitably amended so that there shall not be any
permissibility for data sharing.

To conclude, the postmodern bio-power seen through intersections of law, body,

and techno-science, engenders virtual societies in the form of the database and the
apparatus. Although every invocation of society is tacitly a claim to comprehensiveness,
what emerges through bio-power is never more than a simulation of society. The

23
Justice K.S. Puttaswamy & Ors. v. Union of India & Ors.(W.P.(C) 494/2012); S.G.
Vombatkere & Anr. v. Union of India & Ors. (W.P.(C) 797/2016)

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Supreme Court’s protection of the right against self-incrimination founders against its
greater faith in the truth produced by the decomposed body that is independent of the
conscious mind. A debate over the protection of individual rights that appear to be at risk
when the state seeks to create a universal database effectively marginalizes the needs and
desires of the numerically larger poor to be included in the database and thereby become
visible to state power. These outcomes are manifestations of society as apparatus.

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