A TRYST OF RIGHT TO PRIVACY WITH SEARCH AND SEIZURE

This Article Tries To Question The Status Of Search And Seizure Under The Income Tax Act (The Act) After The Landmark Judgment Delivered By A 9 Judge Bench Of Hon’ble Supreme Court Of India, By Reading The Right To Privacy As An Integral Part Of Art. 21 Of The Constitution And Hence, Declaring It To Be A Fundamental Right.

INTRODUCTION

Right To Privacy Has Always Been A Corner Stone Of A Private Life. It Is So Quintessential And Imperative That If A Person Is Striped Off Of Such Right Then He Will Left With Nothing To Fend For Or Hide. Today, Correcting The Fait Accompli, It Is Read As A Fundamental Right. It Took A Long Time For The Court To Quench And Realise That The Right To Privacy Is An Indispensable Right. The Right To Privacy Is Not A Recent Notion, Perhaps Primordial. The Right To Privacy Can Be Found In The Writings Of Hitopadesh. Hitopadesh Enunciates That Certain Matter Such As Worship, Sex And Family Matters Should Be Protected From Disclosure, In A Crude Sense Is Nothing But Right To Privacy.

Given The Concept Of Privacy, The State Has Its Eternal Responsibility For Securing Socio-Economic Well-Being And Progress Of Society. The Dimension Of Governmental Function Has Always Been Dynamic And It Has Changed Due To Modern Developments. For The Due Performance Of Its Enormous Public Duties States Has To Resort To Charge Heavy Taxation. Collection Of Taxes Is The Blood On Which The Government Survives. No Taxes Mean No Development, No Education, No Infrastructure, And So On. In This Context, Search And Seizure Is No Less Than A Weapon In The Arsenal Of State. The State Is Entrusted With Onerous Duty To Maintain Social Security And Provide Development In Its Broadest Sense. The Government Devised The Tool Of Search And Seizure To Spot People Who Are Hoarding Illegal Money. Action Of Search And Seizure Is Marred But It Is A Very Effective Tool Against Rapacity, If Utilized Strictly Adhering To The Sanctuary Of Law. The Process Is Widely Recognised In All Civilized Countries.

¹ Search And Seizure Here Is Only Restricted To Sec. 132 Of The Income Tax Act And Author Is Not Contemplating To Read Search And Seizure From Any Similar Act.

WHAT IS RIGHT TO PRIVACY?

Black’s Law Dictionary: “Right To Be Let Alone; The Right Of A Person To Be Free From Unwarranted Publicity; And The Right To Live Without Unwarranted Interference By The Public In Matters With Which The Public Is Not Necessarily Concerned.”

New Oxford English Dictionary: “Absence Or Avoidance Of Publicity Or Display; The State Or Condition From Being Withdrawn From The Society Of Others, Or From Public Interest; Seclusion.”

Jude Cooley Explained: The Law Of Privacy And Has Asserted That Privacy Is Synonymous To The Right To Be Let Alone.

Edward Shills Has Also Explained: Privacy Is A Zero Relationship Between Two Or More Persons In A Sense That There Is No Interaction Or Communication Between Them, If They So Choose.

In Layman Terms, Right To Privacy Can Be Denoted As A Right Of A Person To Live Free. Live Free Without Unwarranted Interferences, Checks, Publicity, Or Display. It Is A Right To Let On Live In Nook And Enjoy Seclusion Without Unnecessary Hindrances.

It Is Not A Gawking Fact That The Part III Of The Constitution I.E. Fundamental Rights Is A Borrowed Concept And It Was Borrowed From The American Constitution. The American Fourth Amendment In The American Constitution Expressly Provides:–

“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 Warrant 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.”

The Fourth Amendment Provides For An Abundant Safeguard From The Illegal Search And Seizure. The Concept Of Privacy In America Is Sacrosanct But In India It Was Unheard Of Until Recently. Though, The Fundamental Rights Are Borrowed From The American Constitution, Our Forefather Didn’t Find Any Requirement Or Need To Incorporate The Right To Privacy Explicitly In The Indian Constitution. It Can Also Be Said That The Forefathers Thought Of Privacy As A Mores And Not Thought Of Providing A Notion Which Is Perennially And Deeply Fabricated In The Lives Of People.

 INDIAN CONSTITUTION AND RIGHT TO PRIVACY

The Constitution Of India Is An Apotheosis Of Theory Of Grundnorm As Laid Down By Kelsen. It Is The Most Important Document Giving Legal Sanctity To Other Laws In India. Ostensibly Speaking The Constitution Is Premised On Borrowed Principles, Which Were Then The Best Practices Available Around The World. The Framers Of Constitution Had Made A Deliberate Efforts To Make Changes In Concepts According To Indian Political, Topographical, And Societal Need And Then Permeate It In The Constitution.

The Most Kernel And Functional Part Of The Constitution Is Part III, Which Encompasses The Fundamental Rights In It. The Fundamental Rights Are The Basic Rights Which Are Inherited In Every Human Being. These Rights Are Endowed Upon Every Citizen Of The Country And In Case Of Misfeasance Of Any Fundamental Rights, Proper Panaceas Are Also Provided Under Article 32 Of The Constitution.

The Issue Of Right To Privacy Was Broached For The Very First Time In Debate Of Constituent Assembly Where K T Shah Wanted The Following Formulation (December 1946):

“Every Citizen Of India Has And Is Hereby Guaranteed Security Of His Person, Papers, Property, House Or Effects Against Unreasonable Searches Or Seizure.”

Dr. B. R. Ambedkar Gave A More Elaborate Formulation (March 1947) Favoring A Collective Right Over An Individual One:

“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 Of Affirmation, And Particularly Describing The Place To Be Searched And The Persons Or Things To Be Seized.”

Still, The Constitution Of India Did Not See Any Concrete Article Imbibed With Thread Of Right To Privacy. After Passing Of The Recent Judgment Of 20172, Right To Privacy Has Obtained Impetus Throughout The World And It Has Been Recognized As A Fundamental Right.

² K.S. Puttaswamy V. Union Of India (2017) 10 SCC 1.

TRACING THE JUDICIAL APPROACH TO THE RIGHT TO PRIVACY

M.P. Sharma V. Satish Chandra3 (1954):

·         Privacy For Consideration As A Fundamental Right First Came Before An Eight-Judge Bench Of Hon’ble Supreme Court In The Year

·         Wherein While Dealing With The Power To Search And Seize Documents From The Dalmia Group, The Contours Of The Police’s Powers Of Search And Surveillance Were Outlined, It Was Held That There Is No Right To Privacy Under The

·         Thus, The Court Adopted A Narrow And Formalistic Approach By Pointing To The Absence Of A Specific Constitutional Provision Analogous To The Fourth Amendment Of The US Constitution, To Protect The Right Of Privacy Of Indians From Unlawful.

Kharak Singh V. State Of Punjab4 (1963):

·         After Almost A Decade, Before A Six-Judge Bench Of The Hon’ble Supreme Court, The Privacy And Private Life Issue Once Again Emerged, Only To Be Rejected

·         While Striking Down The Provision Of Chapter XX Of The Uttar Pradesh Police Regulations, Which Allowed For Domiciliary Visit At Nigh Visit, Secret Picketing Of The House Or Approaches To The House Of The Suspect, Periodical Enquiries By Police Officers Into Repute, Habits, Association, Income Or Occupation, Reporting By Police Constables On The Movements Of The Person, The Hon’ble Court Held That The Right To Privacy Is Not A Guaranteed Right Under The

·         In Widening The Scope Of Liberty Under Article 21, The Court Held That ‘Personal Liberty’ Is Contained In Article 21 As A “Compendious Term To Include Within Itself All Varieties Of Rights Which Go To Make Up The Personal Liberty Of Man Other Than Those Dealt With In Several Clauses Of Article 19(1)”.

³ AIR 1954 SC 300

⁴ 1963 AIR 1295

·         In The Words Of SUBBA RAO, : “It Is True Our Constitution Does Not Expressly Declare A Right To Privacy As A Fundamental Right, But The Said Right Is An Essential Ingredient Of Personal Liberty. Every Democratic Country Sanctifies Domestic Life…..”

Govind V. State Of MP5

·         The Hon’ble Supreme Court, Once Again Got A Chance To Dwell Into The Matter Of Right To Privacy, After 11 Years Of Kharak Singh Judgment, In Case Of Govind. This Time The Only Difference Was That The Bench Was Much Smaller Of 3

·         Govind Challenged The Validity Of Regulations 855 And 856 Of The Madhya Pradesh Police Regulations Related To Surveillance, Including Domiciliary Visits, Similar To Kharak Singh Vs State Of Uttar Pradesh. The Hon’ble Court Upheld The Validity Of The Regulations By Holding That Article 21 Was Not Violated Because The Impugned Regulations Were “Procedure Established By Law” In Terms Of The Said

·         Even Though Govind Lost The Case But While Accepting The Unifying Principle Underlying The Concept Of Privacy, The Hon’ble Court Noted That The Fundamental Nature Of The Right Is Implicit In The Concept Of Ordered

·         However, Remaining Cautious, The Hon’ble Court Also Observed That In The Absence Of Any Legislative Enactment, This Right Will Pass Through A ‘Case-By-Case Development’.

·         The Court, Speaking Through Matthew J. Said: “There Can Be No Doubt That The Makers Of Our Constitution Wanted To Ensure Conditions Favourable To The Pursuit Of Therefore They Must Be Deemed To Have Conferred Upon The Individual As Against The Government A Sphere Where He Should Be Let Alone.”

K. S. PUTTASWAMY V. UNION OF INDIA (AADHAR CASE)

·         On 24th August, 2017 A 9 Judge Bench Of The Supreme Court Delivered A Unanimous Verdict In Justice K.S. Puttaswamy Vs. Union Of India And Other Connected

⁵ AIR 1975 SC 1378

·         The Apex Court Quelled The Ongoing Quest Of Right To Privacy As Fundamental Right And Affirmed That The Constitution Of India Guarantees To Each Individual A Fundamental Right To Privacy. Albeit, The Decision Was Unanimous, The Verdict Saw 6 Separate Concurring

·         The Court Acknowledged That Certain Rights Are Not Bestowed By The State But Are Inhered By A Person By Virtue Of Being Human. The Court Recognised The Right Of All Individuals To Privacy, Autonomy And Intimacy, Irrespective Of Their Socio-Economic Status.

·         The Court Also Held That The Right To Privacy Is Not An Absolute Right But Carries A Reasonable Restriction Which Is Limited By Procedure Established By An Invasion Of Life Or Personal Liberty Must Meet The Three-Fold Requirement Of (I) Legality, Which Postulates The Existence Of Law; (Ii) Need, Defined In Terms Of A Legitimate State Aim; And

(Iii) Proportionality Which Ensures A Rational Nexus Between The Objects And The Means Adopted To Achieve Them.

RIGHT TO PRIVACY VIS-À-VIS SEARCH AND SEIZURE

The Development Of Right To Privacy Was Not A Promptitude Incident But A Very Slow Process Which Took Decades. At The Beginning, Right To Privacy Was Not Recognized As Any Right Under Law, Then It Was Recognized As A Legal Right And Today, It Has Taken A Shape Of Fundamental Right. It Is A Pensive Fact That The Indian Society Is Least Bothered And Concerned About The Privacy And Reputation. But, The Court As Sentinel Of Rights Recognized And Protected Right To Privacy.

The Law Of Search And Seizure Finds Place Under Umpteen Statutes. The Search And Seizure Operation, Also Called As Raid, Are Conducted By The Income Tax Authorities When They Have Reason To Believe That A Person Under The Law Has Hoarded Illegal Money. These Hoarded Monies Are More Popularly Known As Black Money. The Search And Seizure Operations Are Carried Out To Unearth Such Black Money And Further Nab Such Acquisitive Person. It Is A Legal Move Against The Black Money By The Revenue Department.

The Act Provides For Search And Seizure Under Sec 132. It Provides That The Revenue Authority Must In Consequence Of Information In Possession Shall Have “Reason To Believe” That Any Person Has Or Willfully Omit Or Fail To Produce The Books Or Other Documents Which Were Required By

Summons Or Notice, Or Person Is In Possession Of Assets Which He Has Or Would Not Disclose Under The Act.

The Powers Of Search And Seizure Under Section 132 Of The Income-Tax Act, 1961 Are Very Wide In Scope. However, Several Safeguards Have Been Imposed Under The Law To Avoid Any Abuse Of Power. A Search Or Seizure Cannot Be Sustained Unless It Is Clearly Shown That It Was Done By An Authority Duly Authorised And All Conditions Precedent In Relation Thereto Exists. A Search Conducted Under Section 132 Of The Act Invades The Privacy Of A Citizen. Thus, Formation Of The Opinion Or Reason To Believe By The Authorising Officer Must Be Apparent From The Records Of The Case. The Opinion Or The Belief So Recorded Should Clearly Demonstrate That The Case Falls Within Any One Or More Clauses Contained In Sub-Clauses (A), (B) And (C) Of Section 132(1). Reason To Believe Consequent Upon The Receipt Of Information In His Possession Is A Sine Qua Non For The Director-General Or The Director Or The Chief Commissioner Or The Commissioner, As The Case May Be, To Authorise Any Joint Director, Joint Commissioner, Assistant Director Or Deputy Director, Assistant Commissioner Or Deputy Commissioner Or Assessing Officer, As The Case May Be, To Do The Acts Specified In Clauses (I) To (V) Of Section 132(1)(B).

Sanctity Of The Home And Privacy Is Reflected In The Common Law Maxim That “Every Man’s House Is His Castle” And Lord Coke Observed In The Same Context:

“The House Of Everyone Is To Him As His Fortress As Well For His Defence Against Injury And Violence As For His Repose.”

Even Though, Lord Coke’s Concept Of Liberty That “The House Of Every Man Is His Castle” Has Undergone Considerable Change But The Sanctity Of One’s Right Of Privacy Cannot Be Ignored Outright. None Has Unfettered Authority To Enter Someone’s Ensconce, Abode, Or Homestead. There Has To Be A Balance Between The Rights Of Individual And Welfare Of Society.

It Is Important To Fathom That Effective Enforcement Of Law Is Based On An Equitable Balance Between The Rights Of The Individual And The Welfare Of Society. The Individual Relinquishes A Part Of His Personal Prerogatives In Order That He And His Fellow Citizens Or Brethren May Be Free From Unlawful Activities. Through This Process, An Officer Draws Power To Meddle Personal Privacy Or To Constrict Individual Liberty And To Require Disclosure Of Information.

In Durga Prasad V. Superintendent6, Central Excise, It Was Held By The Apex Court That The Power Of Search Under The Customs Act Is Of General Search But Before Exercising This Power, The Authorised Officer Must Have “Reason To Believe” That Any Documents Or Things, Which In His Opinion Are Relevant To The Proceedings Under The Act, Are Secreted, In The Place Searched. In

R.S. Jhaver V. Commissioner Of Commercial Taxes7 , The Apex Court Held That Searches Are Not Arbitrary Only When Safeguards Are Extended Namely:-

·         The Empowered Officer Must Have Reasonable Grounds For Believing That Anything Necessary For The Purpose Of Recovery Of Tax May Be Found In The Place Within His Jurisdiction

·         He Must Be Of Opinion That Such Thing Cannot Be Otherwise Got Without Undue Delay,

·         He Must Record In Writing The Grounds For His Belief, And

·         He Must Specify In Such Writing So Far As Possible The Thing For Which Search Is To Be

Similarly, In The Income Tax Officer V. Seth Brothers8, It Was Held That The Power Under Section 132 Of The Income Tax Act Does Not Confer Any Arbitrary Power Upon The Revenue Officers. In The Pooranmal V. Director Of Investigation9, Their Lordships Of The Supreme Court Upheld The Validity Of Section 132 Of The Income Tax Act Only Because Of The Protections And Safeguards Given. As A Broad Proposition, It Can Be Stated That If The Safeguards While ‘Carrying Out Search And Seizure Are Generally On The Lines Adopted By The Criminal Procedure Code And Safeguards Laid Down In Jhaver’s Case Above In Particular, Are Extended, They Would Be Regarded As Adequate And Render The Temporary Restrictions Imposed By These Measures As Reasonable.

The Income Tax Act Saw An Amendment Made Through Finance Act 2017. Due To The Amendment Made In Section 132 By The Finance Act, 2017 W.R.E.F. 1-4-1962, The Reason To Believe Or Reason To Suspect, As The Case May Be, Shall Not Be Disclosed To Any Person Or Authority Or Appellate Tribunal As Recorded By IT Authority Under Section 132 Or 132A. This Amendment

⁶ AIR 1966 SC 1209.

⁷ (1965) 57 1TR 664 (Mad.)

⁸ AIR 1970 SC 292

⁹ (1974) 93 1TR 505 (SC)

Made A Change In The Law Which Has Made The Law Obscure And Further Provided With Unchecked Power In The Hands Of The Department.

The Amendment Made Is Arbitrary And It Diluted The Safeguard Present For The Search And Seizure Under The Act. The Non-Disclosure Of Reason To Believe Even After The Search Action Being Completed Seems Not Justified. A Legal Battle Is Not Fought Only On A Front. There Are Multiple Pedestals And Foras Where The Assessee Contest His Case. The First Step Is Before The Assessing Officer, The Second Step Is Before CIT(A), Then Comes Hon’ble ITAT, Then Hon’ble High Court And The Final Pedestal Is The Hon’ble Supreme Court. The Amendment Made It Impossible For An Assessee To Seek A Satisfaction Note Or Reason To Believe Or Suspect Before Three Quasi-Judicial Body. Only The Hon’ble High Court And Supreme Court Is Vested With Ample Power To Seek For Satisfaction Note Or Reason To Believe Or Suspect For A Search And Seizure.

An Assessee Has To Incur Considerable Amount To File A Writ Before The Hon’ble Court To Ask For Satisfaction Note And Reason To Believe Or Suspect. Further, The Hon’ble Court Precious And Valuable Time Will Be Consumed In Only Calling For A Satisfaction Note And Reason To Believe Or Suspect. The Hon’ble Courts Indulgence In Such Petty Issue Is Wastage Of Time. If An Assessee Is Not Following The Writ And Approaching The Hon’ble High Court By Passing Through All The Lower Pedestal Only To Find That There Was No Satisfaction Note Or Reason To Believe Or Suspect And Therefore, The Search And Seizure Was Illegal And Invalid, Then The Time And Money Invested By The Assessee And The Time Of Lower Authorities Will Become A Futile Exercise And Also It Is A Total Travesty Of Justice. Therefore, Such An Amendment Which Put A Curb On Disclosure Of The Very Essence On Which Search And Seizure Is Premised Is Highly Arbitrary And Illegal.

It Has Been Settled By The Apex Court In Maneka Gandhi V. Union Of India, That “Procedure Which Deals With The Modalities Of Regulating, Restricting Or Even Rejecting A Fundamental Right Falling Within Article 21 Has To Be Fair, Not Foolish, Carefully Designed To Effectuate, Not To Subvert, The Substantive Right Itself”. Thus, Understood, “Procedure” Must Rule Out Anything Arbitrary, Freakish Or Bizarre. A Valuable Constitutional Right Can Be Canalised Only By Civilised Processes”.

It Is Important To Mention Here That After K. S. Puttaswamy Verdict, The Right To Privacy Became A Fundamental Right. Any Action Of Government Or Government’s Authorities Infringing Right To Privacy Need To Be Revalued And Evaluated Constitutionally. It Is Not Contested That Action Of Search And Seizure, Per Se, Is Unconstitutional But Making Non-Availability Of Satisfaction Note And Reasons To Believe And Suspect Is Arbitrary And Unreasonable. Not Only The

Substantive Law But Also The Procedure Provided Therein Has To Be Just, Fair And Reasonable. The Core Question Here Is Whether There Are Sufficient Procedural Safeguards To Rule Out Arbitrary Exercise Of Power Under The Act. The Amendment Of 2017 In The Act Brought A Monumental Change And Therefore Post Amendment It Can Be Seen That The Procedural Safeguards Under The Act Diluted. Supply Of Satisfaction Note And Recording Of Reasons To Believe Or Suspect Were The Conditions/Situations Which Were Sine Qua Non For The Exercise Of The Power. Post Amendment, The Powers Of Authority Are Uncanalised, Unbridled, Naked And Arbitrary Power Which Is Capable Of Being Abused By The Officer Making The Search.

Further, Action Of Search And Seizure Imposes A Blemish Over The Fundamental Right To Privacy. An Action Cannot Be Warranted Unless There Is Some Safeguard Which Are Met. A Person Who Is A Subject Matter Of Search And Seizure Has A Right To Ask For The Reasons For Such Search And Seizure. Not Revealing The Safeguards To The Person Who Is Having A Direct Impact Of Such A Search And Seizure Is Not Only Arbitrary, Unreasonable And Unfair But Also Breach Of Right To Privacy.

 WAY FORWARD

Galaxy Of Cases Decided By The Apex Court And Various High Courts Settled The Position That Taxation Laws Are Amenable To The Fundamental Rights Provided Under The Constitution Of India. If Tax Law Provisions Are Not In Conformity With The Fundamental Rights Embodied In The Constitution Of India, The Court Can Declare These Provisions Unconstitutional. The Power Of Search And Seizure Is Draconian Without Ample Safeguards As Its Illegal Exercise Poses A Serious Threat To Invasion Of The Individual’s Privacy, Reputation, Freedom, Business, Social Status And Other Relevant Things. Therefore, It Has Become A Matter Of Significance And Utmost Priority, To Lest The Chances Of Such Power Being Misused. The Question Of Procedural Safeguards Subject To Amendment Brought To The Act, The Law At Present Is In Fluid, Unsettled And In Uncertain State.

Further, The Case Laws Does Not Indicate A Consistent Pattern. The Courts Only Insist On “Reasonable Belief”. The Connotation Does Not Have Any Strict Interpretation Therefore It Gives A Wide Arbitrary Powers In The Hands Of The Income Tax Authorities. These Powers Of Search And Seizure Are Very Wide And Therefore, There Is A Scope To Use It Arbitrarily.

Court’s Jurisdiction To Scrutinize The Reasons To Believe Is Very Limited Which Is Further Curtailed As Courts Do Not Go Into Facts Which Are Disputed Under The Writ Jurisdiction Under Article 32

And 226. The Law Enacted By The Legislature Should Not Be Arbitrary And Oppressive. The Reasonability Behind The Classification Should Be Obvious. Every Case Has Its Different Circumstances And Facts. The Court Would Declare The Law Violative Of Article 14 Or Art 21of The Constitution Only When The Method Adopted By The Department Is Capricious, Fanciful Arbitrary Or Clearly Unjust.

In The Considered Opinion Of The Author, The Amendment Brought Acts As A Lectern Behind Which An Unfettered Right To Search And Seizure Is Granted To The Revenue Authority. Due Consideration Is Given To The Fact That Revealing Reasons To Believe May End Up Revealing The Source Which Can Be Detrimental To The Whole Search Process As Revealing The Trusted Source Means No Confidence. But At The Same Time No Revealing The Reasons To Believe Or Suspect,

It Will Be Interesting To See How The Court Will Deal With The Issue When Search And Seizure In The Background Of The Right To Privacy Are Raised Before It. The Amendment Brought By The Finance Act Under Sec 132 Is Already Challenged Before The Hon’ble Karnataka High Court10 And Subject Being Sub Judice, The Author Is Reserving His Right To Comment Any Further.

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¹⁰ C. Ramaiah Reddy V. Union Of India W.P. No. 45250/201