Access Part I of the series here
Picking it up from Justice Aftab Alam’s dissent, let’s continue with his reasoning. While recording the reasons for his dissent, he wrote that there was a problem as to the scheme of the Prisoners Act. Expressing his inability to be able to see that how Explanation (a) to Section 53 could be said to include voice sample, he observed that the ratio of Selvi did not enlarge but perhaps restricted the ambit of the expression ‘such other tests’. Further, a careful reading of Sections 3, 4 and 5 would make it clear that these three provisions related to three categories of persons. In the case of the first two categories of persons, the authority to take measurements vested in a police officer but in the case of Section 5, the power vests in Magistrate and not in any police officer. Sounding alarm over the wider implications, he observed that, “If the term “measurement” is to be read to include voice sample then on arresting a person in a case relating to an offence punishable with rigorous imprisonment for a term of 1 year or upwards it would be open to the police officer to require the arrested person to give his/her voice sample on his own and without seeking any direction from the Magistrate under Section 5. On arresting a person in a case relating to an offence punishable with rigorous imprisonment for a term of 1 year or upwards it would be possible for the police officer (of any rank) to obtain not only the voice sample but the full medical profile of the arrested person without seeking any direction from the magistrate under Section 5 of the Identification of Prisoners Act or taking recourse to the provisions of Section 53 or 53A of the Code of Criminal Procedure.”
Come 2019 and the Supreme Court was ready to deliver upon this controversy. At the outset, the Court noted that neither the amendment to Section 53 nor the introduction of Section 53A empowers a Magistrate to direct an accused person or any other person to give his/ her voice sample for the purposes of an inquiry or investigation under the Code. It further noted that “the “omission” of the legislature to specifically so provide has led the learned judge on the two-Judge Bench to doubt as to whether legislative wisdom was in favor of a specific exclusion or omission so as to make a judicial exercise through a process of interpretation impermissible.”
Justifying the arduous navigation of legal provision undertaken by Justice Desai, the court remarked that, “procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation” as upheld in Vatal Nagaraj vs. R. Dayanand Sagar. [A.I.R 1975 SC 349]
Further addressing the reference, the court said that the view that the law on the point should emanate from the legislature and not from the court is founded on two main reasons-
- The compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than reasonable bending and stretch of the principles of interpretation. Recording of a voice sample is not incriminating by itself, but it would be so if identity is established upon the comparison.
- If the legislature, even while making amendments to the Cr.P.C is oblivious and despite express reminders chooses not to include voice sample.- although what appears to be legislative inaction could be on account of justified legislative concern and exercise of care and caution.
Regarding incrimination upon correct identification, the court opined that even so, the accused would be a witness, but not a witness against himself. Further, when a yawning gap in the Statue, in the considered view of the Court, calls for a temporary patchwork of filling up to make the Statue effective and workable and to sub-serve societal interest a process of judicial interpretation would become inevitable. Regarding the breach of privacy, it is very clear that K.S. Puttaswamy has laid down that the right to privacy is not an absolute right and therefore, must bow down to a compelling public interest.
Citing Bangalore Water Supply & Sewerage Board vs. A Rajappa and others [1978 AIR 548], the court remarked that “when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of the Parliament.” Conceding the power to a Magistrate to direct recording of voice samples, the Supreme Court ultimately rested its conclusion on Lord Denning in Seaford Court Estates Ltd. v. Asher [(1949) 2 ALL ER 155, 164]-
“Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state.”