The fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest, remarked the Supreme Court in its judgment holding that a Judicial Magistrate can order a person to give a sample of his voice for the purpose of investigation of a crime.



The three judge bench comprising the Chief Justice of India Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna observed thus in Ritesh Sinha vs. State of UP, while answering the issue whether a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution. The bench observed:

"The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others, Gobind vs. State of Madhya Pradesh and another and the Nine Judge's Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us."

Power Conferred On Judicial Interpretation

The bench further observed that this power to order for voice sample from a person is conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. In this regard, the bench observed:

The exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles. True, the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter.

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