Context :
Accused
has the right to seek documents gathered during investigation: HC … HT
/ 15 Dec 2023
Extract :
The Bombay High Court ruled that an accused person has the right to access any
materials or documents gathered during an investigation, even if they are not
included in the chargesheet.
The court stated that these documents could potentially prove the accused's
innocence and should be made
available to them.
The court stated
that this is because the documents collected during the investigation could be potentially
exculpatory and could cause serious prejudice if not made available to the
accused.
“Once the accused is aware that any
material/documents collected during the investigation which has the potential of absolving him
of the guilt and which is
made known to him through the list of documents, exhibits, etc. furnished in
terms of the explanation to Rule 4 of the Draft Rules, then the accused is entitled to seek
those documents through
an application under Section 91 of the Code”, the court said.
A bench of justice Bharti Dangre,
while upholding the rights of the accused, directed the sessions court to ensure
that the material and documents provided by the
accused himself should be produced before the court.
Justice Dangre accepted his
contentions and noted that the police
are bound by Rule 4 of the Draft Guidelines under the Criminal Procedure Code approved by the Apex Court, which
mandates that a list of documents collected during the investigation of a crime
but not intended to be relied on by the investigative officer, be furnished to
the court.
“Once such a list is furnished, it is the right of the accused to
seek production of the documents provided in the list,” the court said and directed the
sessions court to seek the documents from the investigating officer, “as the documents are necessary and
desirable for the trial, which is exculpatory in nature and would enable the
accuse to prove his innocence, though it is at the stage of framing of charge,
as this will assure him, fairness in the trial.”
My Take :
Ø
Who
watches the Watchmen ? …………………………… 12 Jan 2019
Extract :
# SURVEILLANCE REQUEST SECTION
Any
agency wanting to conduct surveillance of online / offline activities of an
Indian
This shall
contain details such as :
· Name of the agency
· What activity of the citizen is proposed to be
surveyed and for how long
[ Multiple
selection from the following ] :
# Visits
and postings on Social
Media web sites
# Visits
and searches on E
Commerce web sites
# Searches
on Search Engines / All digital traffic (
including thru Alexa / Google
Home
type devices )
# Messages
sent / received on Messaging
Apps / E Mail services
# Records
of Digital Payment Transactions on Banking / FinTech Network
# Audio
logs from Landline and Mobile Service Providers for telephonic talks…etc
Agency will
also need to specify the PURPOSE of the proposed
surveillance , by selecting one or more of the following suspected reasons (
list is not comprehensive ) :
· Tax Evasion / Money
Laundering
· Criminal
Activity / Militancy
· Fraud / Breach
of Trust
· Anti-National
Activity / Sedition / Treason
· Fake News / Pornographic content
posting
· Speeches / articles likely to create
enmity among people
Such a
request shall need Online Authorization of , all of the following officers :
# Chief
of Agency concerned
# Secretary
( Cyber Security ) – Ministry of Information Technology
# Data
Protection Regulator
As soon as
such a request is “ Approved / Authorised “ , an email ALERT will go out
automatically ( without any human intervention ) to the citizen concerned that
she is “ under surveillance “ .
This will
ensure that there is NO SECRET surveillance !
Copies of
this E Mail ALERT will also get sent to all other Intelligence Agencies for a
coordinated effort and for avoiding duplication
# SURVEILLANCE HISTORY SECTION
At any time of his choice , concerned
citizen can login at this section and see WHICH
# But
the citizen concerned will NOT be able to see following
entries by the Agency :
# What was the PURPOSE / REASON for the surveillance
# WHAT DATA got collected
# FINDINGS and proposed COURSE of ACTION , if any
This part
will be visible to all other Intelligence Agencies , who will have facility
to add their own information /
data about the concerned citizen which is in their possession , in order to
compile a COMPREHENSIVE DOSSIER about that citizen .
However,
these other Agencies will NOT be able to EDIT any ENTRIES / FINDINGS of any other agencies
ALTHOUGH
THESE ENTRIES ARE NOT ACCESSIBLE TO THE CONCERNED CITIZEN IN A NORMAL COURSE ,
THE SAME
SHALL BE MADE AVAILABLE TO HER IN CASE ANY GOVERNMENT AGENCY
RELIES UPON THESE DURING A COURT CASE AGAINST THAT CITIZEN , ARISING FROM SUCH
SURVEILLANCE
My proposal,
# Gives
a free hand to the Agencies to proceed with their
investigations, without needing
And
# Ensure
total TRANSPARENCY of their surveillance activities to
the persons being
investigated
This will
assure the ordinary citizens (– and also “ vulnerable “ citizens such as
politicians belonging to opposition parties ? )– that they are not being snooped upon secretly !
With regards,
Hemen Parekh
www.hemenparekh.ai / 20
Dec 2023
Following are comments by ChatGPT on my suggestion :
Rights of an Accused Person:
·
Access to Investigative
Materials:
Bombay High Court ruled that an accused person has the right to access
materials gathered during the investigation, even if not included in the
charge-sheet.
·
Purpose: These materials could
potentially prove innocence and should be available to prevent prejudice
against the accused.
·
Legal Mandate: Court directives ensure that
materials provided by the accused should be produced before the court, and the
police are bound by guidelines to furnish a list of documents collected during
the investigation not intended to be relied upon.
·
Procedural Fairness: This access, even at the
framing of charges, assures fairness in the trial process.
Rights of Persons under Surveillance
(as proposed by Hemen Parekh):
·
Surveillance Request Section: Agencies need to submit
detailed requests for surveillance specifying the nature, purpose, and duration
of surveillance activities.
·
Authorization Process: Requires online authorization
from higher officials in relevant agencies to ensure oversight and prevent
secret surveillance.
·
Notification to the Individual: Automatic email alerts are sent
to the individual under surveillance, ensuring transparency and eliminating
secret surveillance.
·
Access to Surveillance History: Individuals can log in to see
which agency surveilled them and for how long, ensuring they are aware of being
under surveillance.
·
Access Restrictions: Certain information, including
the purpose, collected data, findings, and proposed course of action, is
restricted from the individual but available to other intelligence agencies and
made available if used in a court case.
Comparative
Insights:
|
Aspect |
Accused Person Rights |
Rights of Persons under Surveillance (as proposed by Hemen Parekh) |
|
Access to Information |
Access to investigative materials even beyond
chargesheet |
Limited access; certain information withheld from
individual but accessible in legal proceedings |
|
Notification |
Information provided during legal process |
Automatic email alerts; no secret surveillance |
|
Purpose & Transparency |
Ensuring fairness in trial process |
Transparency and oversight in surveillance;
restricted access to certain sensitive information |
|
Oversight & Authorization |
Bound by legal guidelines |
Higher-level online authorization; coordinated
efforts among agencies |
Comparison
Summary:
The proposed rights for persons under surveillance, as suggested
by Hemen Parekh, focus on ensuring transparency, oversight, and notification
for individuals being surveilled, with some limitations on direct access to
sensitive information. This stands in contrast to the rights accorded to an
accused individual during legal proceedings.
This proposed suggestion aims to strike a balance between the necessity of
surveillance for security purposes and the protection of individual rights, offering a compromise that ensures transparency while withholding
certain sensitive information.
And here is what BARD
had to say :
Your blog raises a complex and important
question about the balance between national
security and individual rights in the context of state surveillance. Comparing
the rights of an accused person to those of a person under surveillance is not
straightforward, as their situations and legal frameworks differ significantly.
Here's a breakdown of the key points:
Accused
Persons:
·
Presumption of
innocence: In a criminal justice system,
an accused person is presumed innocent until proven guilty. This principle guarantees
certain rights, such as the right to a fair trial, legal representation, and
access to evidence.
·
Right to know
the charges: An accused person has
the right to know the specific charges against them, allowing them to prepare
their defense.
·
Right to confront
accusers: The accused has the right to
challenge the evidence against them and confront their accusers in court.
·
Due process: The law must be followed
fairly and consistently in all criminal proceedings.
Persons
Under Surveillance:
·
Suspicion, not
accusation: Surveillance typically
occurs based on suspicion of wrongdoing, not confirmed evidence. This
distinction weakens the justification for granting full rights as in a criminal
case.
·
National
security concerns: Balancing
individual rights with national security interests can be a complex task.
Unrestricted access to surveillance information by individuals under
investigation could compromise ongoing operations or sources.
·
Potential for
abuse: Unchecked surveillance powers
can lead to abuse of individual rights, especially for vulnerable groups.
Safeguards and oversight mechanisms are crucial to mitigate this risk.
Comparative
Tabulation:
|
Feature |
Accused Person |
Person Under Surveillance |
|
Legal basis |
Criminal law |
National security law |
|
Status |
Presumed innocent |
Suspected of wrongdoing |
|
Rights to information |
Full access to charges and evidence |
Limited or no access to surveillance details |
|
Right to confront accusers |
Yes |
Typically not |
|
Due process |
Strict legal procedures |
Balancing individual rights with national
security concerns |
International
Practices:
Several countries have implemented
legal frameworks for surveillance activities, with varying degrees of
transparency and accountability. Some examples include:
·
United Kingdom: The Investigatory Powers Act
2016 provides for judicial oversight of certain surveillance programs, but
concerns remain about its effectiveness.
·
Germany: The Federal Intelligence
Service Act requires parliamentary oversight of surveillance activities and
grants limited rights to individuals under investigation.
·
India: The Right to Privacy judgment by the Supreme Court in 2017
recognized privacy as a fundamental right and called for a robust legal
framework for surveillance. However, a comprehensive legal framework is still
under development.
Conclusion:
The application of "natural justice"
principles to persons under surveillance requires careful consideration of the
competing interests of individual rights and national security. While full
rights as granted to accused persons may not be feasible, some level of
transparency, accountability, and safeguards against abuse are crucial to
protect individuals from arbitrary surveillance. The specific
details of such safeguards will depend on the legal and political context of
each country.
Your
blog proposal raises interesting ideas for increased transparency in
surveillance activities while protecting sensitive information. Further research and public
discussion are necessary to develop effective and balanced solutions for this
complex issue.
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