CRITICAL ANALYSIS OF GOPALKRISHNAN V. STATE OF KERALA

This article was written by Stuti Sehgal, a student of Gujarat National Law University, Gandhinagar.

The right to privacy was established in the case of Justice K.S Puttaswami v. Union of India.[1]  This case overruled judgements such as M. P. Sharma v. Satish Chandra[2] and Kharak Singh v. State of Uttar Pradesh[3], which said privacy was not guaranteed by the Constitution. The judgement also stated that privacy is not an absolute right. In most cases right to a fair trial supersedes the right to privacy.  This is not what happened in this case, allowing for the judiciary to pave another way to achieve justice.

In the case of P. Gopalkrishnan v. State of Kerala[4] the issues addressed are [1] the intra-conflict of the fundamental rights of Article 21 and Article 14 of the Indian constitution, which is the right to a fair and just trial and right to privacy respectively and [2] whether the recording was a material object or a document under the Criminal Procedure Code and therefore, the scope of application of sections 173 and 207.

The Intra-Conflict between The Fundamental Rights of Article 21 And Article 14 

Prosecution’s Submissions

Under article 14, the prosecution has a right to privacy, dignity and identity, whose violation would imping on public interest.[5] The prosecution submitted that the accused had two motives during the sexual assault of the girl, which were the committing of the crime and taking a recording of the same.[6] This suggest that the accused intended to use the video made by them for insulting the victim.[7] Therefore, the Court has strong reason to believe that accused if given a copy of the recording would misuse it[8] irrespective of safety measures.[9][10]

The accused are claiming to have a right to the cloned copy under section 207 of the Criminal Procedure Code, which states that the accused should be furnished copies of all relevant evidence and document as soon as possible. The prosecution submitted that this section cannot be applied to this recording since it is a product of the crime and hence is a material object and not a document as under section 207.[11]

The prosecution has provided an in arguendo, that even if the recording is a document under section 207 of the Code, the accused merely have a statutory right to it.[12]  The accused has cited judgments to state that any law that violates fundamental rights must be tested for validity[13] and that fundamental rights of any individual will always supersede the statutory right of another.[14] Thus irrespective of the scope of application of section 207 on the recording, the fundamental right of the prosecution supersede.

The prosecution also submitted that the recording had been analyzed by the State FSL,[15] and the assistant public prosecutor,[16] whom believed that the recording was genuine and untampered. Both believed that the appellant’s claims regarding its authenticity was a figment of their imagination.[17] Therefore, the prosecution submitted that the authenticity cannot be questioned.

Accused’s Submissions 

The accused has submitted various counts based on which their lack of access to the cloned copy could result in miscarriage of justice.

Firstly, the defense submitted a precedent[18] to prove that not receiving a copy of the recording did not just relate to violation of the accused’s statutory rights under section 207 and 173, but was directly related to the fundamental under Article 21.[19]

Secondly, the prosecution’s submissions were based on the recording, making it crucial and material to the case.[20] The prosecution using the video to not only prove the occurrence but also as objective of the crime, making it the material evidence of the case. Without having copy the accused would not be able to be part of a fair and just trial thus violating their fundamental rights.

Thirdly, given the serious nature of the offense the accused should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial upon which the prosecution relies.[21]

Fourthly, the prosecution in itself had named the victim in the First Information Report and the Crime Case, thus revealing the identity and dignity of the victim themselves.[22]

Fifthly, if the accused is unable to get a cloned copy of the recording, they will be unable to trust the authenticity of the same, without which the trial could go askew.[23]

Sixthly, the defense submitted that without the cloned copy of the recording they would have to depend on the current agency’s investigation into that tape. They would not be able to get the tape verified by their own expert. The defense also pointed out the unskilled job the current agency was doing. The investigation agency not only did not compare the female voice of the in the footage to the victim’s[24] but also lost the mobile phone which was used for recording the evidence.[25] The defense thus, submitted that the reports of the agency were not reliable and they would get it examined independently.[26]

Seventhly, the prosecution’s submissions were that the accused motives were to commit the crime and the record it.[27] The defense submitted that the motive behind recording cannot assumed to be malicious. It could be possible that the recording occurred contemporaneously as the committing of the crime.[28] The prosecution’s claims cannot be proved without the defense getting a cloned copy of the recording. Further, proving their submissions would be inefficient without a copy.

Therefore,not receiving a cloned copy of the recording would violate the same’s right to a fair and just trial under Article 21 of the Indian Constitution.

Court’s Judgment

The Supreme Court believed that rights flowing from article 21 and from article 14 must be balanced,[29] in a manner for the most community interest.[30] Ensuring that these two aspects of a trial are fulfilled is rule of law.[31] The court held that finding a balance between these two rights did not mean total extinction of one of these rights,[32] instead it would merely them.[33] Further the Court opined that the previous suggested measures such as watermarks or involvement of experts weren’t strong enough to safeguard privacy.[34]

It ruled therefore, the best way to curtail this right would be to ensure that the trial is a just and fair, without having to give the a copy to the accused. The court allowed the accused’s lawyer and an I.T. expert in the Court to view the recording, at the behest of the Magistrate, with all security concerns taken to ensure that a copy isn’t made.[35] Therefore, the court held that this access to the accused would ensure that the defense presented by the accused can be effective. This would ensure that the Article 21 rights of the accused aren’t violated and neither are the privacy right under Article 14 of the prosecution.

The Nature of the Recording under the Criminal Procedure Code for the Application of Sections 173 and 207 of the same code.

The section 207 of the code requires that the accused be provided with all relevant documents of the case, unless the record is too voluminous, then the accused would be required to view the documents personally or through a pleader in the Court. Section 173 also states that the Court is responsible to ensure that all required documents must reach the accused without unnecessary delay.

Prosecution’s Submissions

The prosecution submitted that the statutory right of the accused is superseded by the fundamental right as mentioned previously,

It submitted that it was at the Magistrate’s discretion to determine if the accused should review the document in the Court.[36] They further pleaded that incases of unambiguous sections the simplest meaning should be taken,[37] allowing the Magistrate to determine whether the accused should get a copy.[38]

Accused’s Submissions

As previously mentioned, the defense submitted that the investigative agency could not be trusted with analysis of the recording.

The defense submitted that the section 173’s scope of application is not as wide as section 207’s. Therefore, its application should be more liberal and allowing the recording to fall under its scope.[39]

The defense submitted that since the prosecution’s alleged that the recording was the main motive of the crime it is a product of the same and thus a material evidence, making it not valid for the application of the exception under section 207’s document.[40]

Court’s Judgment

The court opined that recording was a document as referred under the Code and is not liable for the exception under section 207 clause (v), since it isn’t voluminous in nature. Therefore, in ordinary situations, the recording must be shared, but not in the current case.

Therefore, in the current case analyzed the right to privacy as under Article 14 proved to serve a greater community interest as opposed to the protection of the accused’s fair trial right as under Article 21. At the end of the day his right to fair trial was protected but was given lesser weightage than the former.

[1] Justice K.S Puttaswami v. Union of India, (2017) 10 SCC 1.

[2] M. P. Sharma v. Satish Chandra, 1950 SCR 1077.

[3] Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332.

[4] P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161. (Hereinafter “Gopalkrishnan”).

[5] Gopalkrishnan, supra note 1, at ¶ 6.

[6] Gopalkrishnan, supra note 1, at ¶ 10.

[7] Id.

[8] Id.

[9] Gopalkrishnan, supra note 1, at ¶ 38.

[10] Gopalkrishnan, supra note 1, at ¶ 5.

[11] Gopalkrishnan, supra note 1, at ¶ 7(41).

[12] Gopalkrishnan, supra note 1, at ¶ 7(43).

[13] K.S. Puttaswamy (Retd.) and Another v. Union of India and Ors. (2017) 10 SCC 1.

[14] Sherin V.John vs State Of Kerala, 2018 (3) KLT 298.

[15] Gopalkrishnan, supra note 1, at ¶8.

[16] Gopalkrishnan, supra note 1, at ¶ 10.

[17] Id.                            

[18] V.K. Sasikala vs State Rep. By Superintendent, (2012) 9 SCC 771

[19] Gopalkrishnan, supra note 1, at ¶ 19.

[20] Gopalkrishnan, supra note 1, at ¶ 5(7).

[21] Gopalkrishnan, supra note 1, at ¶ 32.

[22] Gopalkrishnan, supra note 1, at ¶ 34.

[23] Gopalkrishnan, supra note 1, at ¶ 5(7).

[24] Gopalkrishnan, supra note 1, at ¶ 5(11).

[25] Gopalkrishnan, supra note 1, at ¶ 5(14).

[26] Gopalkrishnan, supra note 1, at ¶ 10.

[27] Gopalkrishnan, supra note 1, at ¶ 5.

[28] Gopalkrishnan, supra note 1, at ¶ 7(41).

[29] Gopalkrishnan, supra note 1, at ¶ 39.

[30] Gopalkrishnan, supra note 1, at ¶ 41 (57).

[31] Gopalkrishnan, supra note 1, at ¶ 41(86).

[32] Gopalkrishnan, supra note 1, at ¶ 40.

[33] Gopalkrishnan, supra note 1, at ¶ 40 (61).

[34] Gopalkrishnan, supra note 1, at ¶ 36.

[35] Gopalkrishnan, supra note 1, at ¶ 43.

[36] Gopalkrishnan, supra note 1, at ¶ 16.

[37] Hardeep Singh v. State of Punjab, (2014) 3 SCC 92.

[38] Gopalkrishnan, supra note 1, at ¶ 17.

[39] Gopalkrishnan, supra note 1, at ¶ 18 (219).

[40] Gopalkrishnan, supra note 1, at ¶ 7.