Right to personal liberty: India
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Article 21 of the Constitution
Citizens don't have absolute right over their bodies: Govt
People Can't Say No To Iris Scans, Fingerprinting, AG Says To SC
The Centre told the Supreme Court that citizens could not claim “absolute“ right over their body parts and refuse to give digital samples of their fingerprints and iris for Aadhaar enrolment.
The concept of absolute right over one's body was a myth and various laws put restrictions on such a right, attorney general Mukul Rohatgi told a bench of Justices A K Sikri and Ashok Bhushan.
His assertion came in response to a clutch of petitions challenging the constitutional validity of Section 139AA of the Income Tax Act which provides for mandatory mention of Aadhaar while filing income tax returns and app lying for PAN number from July 1this year. The Centre also said after the passage of the Aadhaar Act, it has become mandatory for citizens to get the unique identity number. Rohatgi said that people could not claim to have the right to be forgotten by refusing to get an identification proof like Aadhaar. “Even if you want to be forgotten, the state is not willing to forget you,“ he said.
The AG contended that the right over one's body was not absolute as the law prohibited people from committing suicide and women were barred from terminating their pregnancy at an advanced stage. Had there been absolute right then people would have been free to do whatever they wanted to do with their body , but the law did not recognise the absolute right of people over their bodies, The attorney general contended.
“There is no absolute right over the body . If such a right existed then committing suicide would have been permitted and people would have been allowed to do whatever they wanted with their bodies.The right not to have bodily intrusion is not absolute, and the life of a person can also be taken away by following a due procedure of law. People cannot commit suicide and take drugs,“ he said. He said people were also required to allow police to measure their breath for alcohol content in drunken driving cases. The court, however, told the attorney general that the examples given by him were not appropriate as the case pertains to taxation law and not with offence. It also said that a balance had to be maintained between an individual's right and the state's actions.
He said that no consent was required to get samples of blood and fingerprints of an accused in a criminal case and there was nothing wrong if Aadhaar was used as a preventive measure to curb tax evasion and black money by linking it to PAN card.
The hearing also saw the AG emphasising that the just passed Aadhaar Act has changed the nature of the unique identity scheme from voluntary to mandatory .
The government had so far maintained that Aadhaar was not compulsory in nature and it was voluntary for residents to get a unique identity number to get benefits of various social welfare schemes linked with Aadhaar. On Tuesday , Rohatgi told the SC that Sections 7 and 54 of the Aadhaar Act made it mandatory.
Rohatgi said linking PAN with Aadhaar was needed to curb tax evasion and to keep tabs on the circulation of black money as PAN was not a foolproof deterrent. He refuted the allegation that people would be under the government's surveillance if Aadhaar was made mandatory
Article 20(3) of the Constitution
Taking fingerprint no rights breach: SC
Dhananjay Mahapatra, `Taking fingerprint no rights breach', May 5, 2017: The Times of India
It Doesn't Mean Compelling Accused To Become Witness Against Himself: SC
Settling a doubt which has troubled crime investigators for long, the Supreme Court has ruled that asking an accused to give finger or foot prints for investigation purposes did not violate his fundamental right to protect himself from becoming a witness against himself.
The question before a bench of Justices Pinaki Chandra Ghose and Rohinton Fali Nariman was “whether compelling an accused to provide his fingerprints or footprints etc would come within the purview of Article 20(3) of the Constitution of India, that is compelling an accused of an offence to be a `witness' against himself“? This question arose in a case involving the murder of four persons of a family in Etawah in September 2000. The main accused died during the trial but his alleged associate, who had refused to give finger and foot prints to the investigating officer despite a direction from the trial court, was convicted of the crime and sentenced to death. The HC acquitted him while holding, among other things, that the trial court could not have drawn an adverse inference because the accused refused to give a specimen of his palm impression in spite of the court order. The UP government and a relative of the murdered persons appealed against the acquittal in the SC.
The SC bench took note of the accused person's fundamental right under Article 20 (3), which provides, “No person accused of any offence shall be compelled to be a witness against himself.“ It also examined a 2010 judgment (Selvi vs Karnataka), in which the SC had said investigators could not force an ac cused to undergo narco-analysis or lie-detector tests as it involved extracting self-incriminating statements, which would violate protection under Article 20(3).
After examining the constitutional provision and other SC judgments, the bench said, “Any person can be directed to give his footprints for corroboration of evidence and the same cannot be considered a violation of protection guaranteed under Article 20(3) of the Constitution.“ It overturned the HC ruling that if an accused refused to give fingerprints or footprints, despite court direction, no adverse inference could be drawn against him. Justices Ghose and Nariman said, “It may , however, be noted that non-compliance of such direction of the court may lead to adverse inference, nevertheless, the same cannot be entertained as the sole basis of conviction.“ This caveat -noncompliance leading to adverse inference could not be the sole ground for conviction -saved accused Sunil from the gallows.
Referring to the evidence collected by UP police in the case, the bench said, “It could without any hesitation be said that the basic foundation of the prosecution had crumbled down in this case by not connecting the accused Sunil with the incident in question. And when basic foundation in criminal cases is so collapsed, the circumstantial evidence becomes inconsequential. In such circumstances, it is difficult for the court to hold that a judgment of conviction could be founded on the sole circumstance that recovery of weapon and other articles have been made.“
In arriving at the conclusion that a court could direct an accused to give fingerprints and footprints, the SC relied on its judgment in a 1962 case. In that case, the SC had said, “The giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression `to be witness'.“
It had further said, “Taking of impressions of parts of body of an accused person very often becomes necessary to help investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.“
