Supreme Court flags absence of law regulating private investigators in India; urges government to act

The Supreme Court on Friday expressed concerns over the absence of a regulatory framework governing private investigators in India and its implications for privacy and personal data. [Himanshu Chordia v. State of Rajasthan & Anr.]

A Bench of Justices Sanjay Karol and Vipul M Pancholi raised the issue while dealing with a matrimonial dispute in which a husband had produced a large number of photographs and videos to allege that his wife was living in adultery.

The husband had opposed his wife's claim for maintenance under Section 125 CrPC, alleging that she was in an extramarital relationship. To support his claim, he produced around 92 videos and 237 photographs which allegedly showed his wife pursuing a relationship outside the marriage.

The volume and nature of the material prompted the Court to question how such photographs and videos were collected and whether private investigators had been engaged for the purpose.

The Court also noted that the husband had said he had received the photographs, suggesting that someone else had taken them.

The Bench raised questions about who had taken the photographs, whether they were authorised to do so and how such material was stored.

It also flagged the possibility of photographs and videos being doctored or morphed using technology and the implications this could have for the right to privacy and protection of personal data.

"What are the limits within which a private investigator may function? Who would be responsible for ensuring that the investigator operates within the confines of the law? What would be the redressal mechanism available to a person aggrieved by the actions of a private investigator?" the Court asked.

The Bench noted that there appeared to be no existing body that could deal with such issues.

It said there should be limits on what private investigators could do, regulation of the data and photographs procured by them and a mechanism to address grievances where investigators overstepped professional boundaries and violated individual rights.

"There has to be a mechanism in place to deal with the evolving methods of evidence collection," the Court said.

It also referred to the Private Detective Agencies (Regulation) Bill, 2007, which had sought to regulate private detective agencies but did not become law.

Against this backdrop, the Court stressed the need for a mechanism to regulate such activities.

"In light of the questions posed by us above, the need to develop our mechanism for dealing with these scenarios cannot be underscored enough. The legislature would obviously need to undertake its own examination of all relevant issues and frame rules/regulations in accordance with the prevalent norms and conditions," said the Court.

It added that the legislature could consider regulatory frameworks in jurisdictions such as Queensland in Australia, Ontario in Canada, the Netherlands and Singapore.

Accordingly, the Court directed that a copy of the judgment be sent to the secretary of Ministry of Law and Justice and the chairman of Law Commission of India to take a view as may be appropriate in the matter.

[Read Judgment]