PREAMBLE TO THE CONSTITUTION DECLARES:
We, The People of India, Having resolved to
constitute India into a Sovereign Socialist Secular Republic and to secure to
all its citizens, solemnly affirm:
JUSTICE, Social, economic and political.
LIBERTY of thought, expression, belief,
faith and worship.
EQUALITY of status and of opportunity;
And
to promote among them all FRATERNITY assuring
the dignity of the individuals and the (Unity and integrity of the Nation); Do
hereby adopt, enact and give ourselves this constitution. Thus as Professional
Investigators we enjoy equality of status and opportunity under the
Constitution.
FUNDAMENTAL LAW
The
Constitution operates as a Fundamental Law. The Government organs owe their
origin to the Constitution and derive their authority from, and discharge their
responsibilities within the framework of the Constitution. The validity of Law,
whether Union or State, is judged with reference to their respective
jurisdictions as defined in the Constitution. The Judiciary has power to declare a law unconstitutional, if the law
is found to have contravened any provision of the Constitution. Constitution
is what the Judges say it is ( Advocates-on-Records Association vs. Union of
India, AIR SC. 1994). The features of Basic structure of the Constitution
include separation of powers between the Legislature, the Executive and the
Judiciary. It is well accepted concept that if JUSTICE, LIBERTY, EQUALITY AND
FRATERNITY, including social, economic and political justice are to be
achieved, the Indian Polity has to be educated (P.A. Inamdar Vs State of
Maharashtra, 2005 s.c.). The Supreme Court has also ruled that the task of
legislature is to arrive at a pragmatic balance between the often competing
interest of “personal liberty” and “public safety” (Selvi vs. State of
Karnataka AIR 2010-sc 1974)
FUNDAMENTAL RIGHTS VIS-À-VIS PROFESSIONAL
INVESTIGATION
Article
13 of the Constitution deals with laws inconsistent with or in derogation of
the fundamental rights. It provides that” the State shall not make any law
which takes away or abridges the rights conferred by this part and any law made
in contravention of this clause shall, to the extent of the contravention be
void.”
The
object of the definition in Article 13 is to ensure that instruments emanating
from any source of law- permanent or temporary, legislative or judgment or any
other source (order, by-law, rule, regulation, notification) will pay homage to
the Constitutional provision relating to the fundamental rights. Thus even if
the Government of India enacts the Private Detective Agencies (Regulation)
Bill, 2007 and if the provisions take away or abridge the rights of profession,
right to know etc. from Investigators, it can be challenged in Supreme Court.
Article
32 of the Constitution of India provides remedies for enforcement of rights
conferred by this Part. Seeking remedy is also guaranteed as a fundamental
right under this Article. Supreme Court enjoys the power to issue directions or
orders or writs, including writs in the nature of “Habeas corpus”, “mandamus”,
“prohibition”. “Quo warranto” and “certiorari”, whichever may be
appropriate, for the enforcement of the rights conferred.
Yet
another fundamental right available to the citizens of India, and therefore, to
Professional Investigators as well, is provided under article 14 of the
Constitution. It is regarding Equality before
Law. It says that the State shall
not deny to any person equality before the Law or the equal protection of laws,
within the territory of India (John Vallamattom vs. Union of India AIR 2003 sc
2902). However, the equality has a positive concept and such equality cannot be
claimed in illegality (State of Punjab vs. Col. Kuldeep Singh, AIR 2010 sc 1937). Any executive
action which violates equality i.e. statutory or non-statutory order which is arbitrary
may be set aside by courts even if it is based on statue or may be purely
executive in nature. Thus even if any Enactment (like Private Security Agencies
(Regulation) Act 2006 or the futuristic Private Detective Agencies (Regulation)
Bill 2007) is considered valid by Court but executive order passed there under,
if arbitrary in nature, may be set aside. Here the Courts are not concerned with
the validity of the Parent Act but with the mode of exercise of powers there
under. Action taken by State in undue haste may be held to be malafide (Inderpreet
Singh Kahlon vs. State of Punjab, AIR 2006, sc 2571)
RIGHTS TO PRACTICE ANY PROFESSION
Article
19 of the Constitution of India, guarantees certain rights regarding:
a.
Freedom of speech and expression;
b.
To move freely throughout the territory of India,
c.
To
practice any profession, or to carry on any occupation trade or business.
d.
However
clause 2 of Article 19 clarifies that nothing shall affect the operation of any
existing law in so far as it imposes or prevent the State from making any law imposing, in the interest
of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub-clause, and, in particular (nothing shall affect the
operation of any law relating to-
1. The
professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business etc.)
The proposed Bill to regulate
the profession of Private Investigators provides for training to earn a
license. It is a valid stipulation under law.
CRITERIA OF VALIDITY OF LAW
The considerations which generally prevail in judging the
validity of a law under Article 19 are:
a. Whether
the law imposes a restriction on the freedom in question;
b. Whether
the restrictions have been imposed by law;
c. Whether
the restrictions are reasonable;
d. Whether
the restrictions besides being reasonable are imposed for one of the specified
purposes relevant to the freedom in question as enumerated in the applicable
clauses 2 to 6 of the article. Each of these conditions must be satisfied.
The right guaranteed by
Clause (g) of article 19(1), namely, freedom of profession, trade or business
is intended to ensure that citizens
right to business does not depend on grant by the State and that the State
cannot prevent a citizen from carrying on a business, except by a law imposing
a reasonable restriction in the interest of the general public. Of course,
there is no right where the business is dangerous or immoral. Such a business
may be absolutely prohibited or may be required to be licensed. Moreover, there
is no right to carry on a business at any place or at any time and restrictions
may be imposed in that regard. The words “dangerous” or “immoral” are strong in
meaning, connotation and intent. The business of professional private
investigation cannot be termed “dangerous”.
It is not like manufacturing explosives or bombs illegally. Nor is it “immoral” because the definition of
“detective work” is collection of lawful information in lawful manner. Far from
falling in the category of dangerous or immoral, the services rendered by
professional investigators are services to society. As such the Private
Detective Agencies (Regulation) Bill, 2007 cannot have provisions which are
prohibitive. At best it can be regulated by licensing eligible contenders. If
the word “regulation” amounts to “restriction” in letter and spirit, it would
be “unreasonable” in law and would fail to stand the trial of court in view of
the fundamental right to practice profession guaranteed by the Constitution of
India.
LICENSING AND PERMITS FOR CARRYING TRADE
The proposed Private
Detective Agencies (Regulation) Bill, 2007 sets out to issue license to Private
Detectives in accordance with the provisions incorporated therein. While the
original Bill is rather permissive in nature and only reasonable restrictions
are likely to be imposed, the Report dated May 28, 2014 of the committee under
the Chairmanship of Secy (BM) in MHA contains stringent measures to regulate
the profession. The areas of concern are:
1. Definition
of “lawful objective” and “lawful manner”;
2. Jurisdiction
of PDA’s;
3. Conflict
between Private and State Detective Agencies;
4. Legal
sanctity to PDA’s
5. Foreign
Detective Agencies in India;
6. MNC’s
in Detective agencies in India;
7. Infringement
of Privacy of Individuals;
8. Evidentiary
value of reports of PDA’s;
The Government has to
take a decision on the recommendations and the stand of Association of Private
Detectives, India has already been conveyed to the Secretary, Ministry of Home
Affairs, GOI. Jurisdiction of PDA’s, if defined properly will not have any
conflict with State Detective Agencies. If restrictions are imposed on the
licensing of Foreign Detective Agencies in India, and also on MNC’s engaged in
Detective work in India, it would be justified in view of the law of the land.
Such foreign entities should not be licensed as PDA’s in view of security
concerns of the Country. Article 19 of the Constitution of India means to
ensure that in the context of licenses and permits required for carrying on a
business or trade, the grant of such license cannot depend upon the absolute discretion
of an administrative authority. The policy must be laid down on which the
discretion is to be exercised. Further, in general, the discretion must be
exercised on relevant consideration. In short, if the law imposing licensing
does not set out the consideration, the law would be void. If the considerations
are set out in the law, but are departed from the competent authority while administering
the law then the order of the competent authority would be void, even though
the law itself may be valid. Important Supreme Court Judgments are:
·
Dwarka Prasad Laxmi Naraian vs. State of UP
·
Faruk vs. State of MP.
RIGHT TO KNOW: TRIAL Vs TEST OF
REASONABLENESS
A citizen has a right to know about the activities of the
state, the instrumentalities, the departments and the agencies of the state.
The privilege of secrecy which existed in old times, (namely) that the state is
not bound to disclose the facts to the citizens or the State cannot be
compelled by the citizens to disclose the facts, does not survive now to a
great extent. Under Article 19 there exists the right of freedom of speech.
Freedom of Speech is based on the foundation
of Freedom of Right to know. The
State can impose reasonable restrictions in the rights where it affects the
national security or any other matter affecting the nation’s integrity.
The Press is not immune from the general law of liability for
defamation (civil and criminal). Freedom of the Press is not expressly
mentioned in Article 19 but has been held to flow from the general Freedom of
Speech and expression guaranteed to all citizens. As judicially construed, this
freedom now includes not merely the freedom to right and publish what the writer
considers proper (subject to reasonable restriction imposed by law for specific
purpose), but also the freedom to carry on the business so that information may
be disseminated and excessive and prohibitive burden restricting circulation
may be avoided. All said and done the rights available to citizens are also
available to Professional Investigators and they can always exercise those
rights within the framework of law about reasonable restrictions. Questions are
often raised as to “trial by media”. Media deploys their own reporters to
unearth details not otherwise available. However, investigative journalism has
its risks. The law does not prohibit it in the abstract. But the law does
require the players in this activity to keep within certain limits. Those
limits primarily flow from:
a. The
right to reputation;
b. The
right to privacy
c. The
law of contempt of court.
In applying the test of reasonableness (which is the most
crucial consideration), the broad criteria is whether the law strikes a proper
balance between social control on one hand and the rights of an individual on
the other hand. The Court must take into account the following aspects:
a. Nature
of the right infringed;
b. Underlying
purpose of the restriction imposed;
c. Evils
sought to be remedied by the law, its extent and urgency;
d. How
far the restriction is or is not proportionate to the evil; and
e. Prevailing
conditions at the time.
The Supreme Court has considered the question of
reasonableness on several occasions and has laid down several tests and
guidelines to indicate that, in particular circumstances restrictions can be
regarded as reasonable. One of the tests is to bear in mind the directive
Principles of State Policy.
PROFESSIONAL
PERSPECTIVE
Professional Investigators must bear in mind that the right of
an individual or of a legal entity is not infringed by any activity which
bestows right to know on the Private Investigator. The right to profession of
Private Investigator is not absolute and the State can impose reasonable
restrictions. Then again the right to reputation and the right to privacy of an
individual has to be honored by Professional investigators.
Understanding the provisions of the Constitution of India is paramount
for professional Investigators. So far as they adopt legitimate means to
collect permissible information and verify facts, they can avail the
fundamental rights of knowledge and profession guaranteed by The Constitution
of India to its citizen. Care has to be taken not to infringe any fundamental
right of a citizen and not to violate any other law in operation. There is no absolute
Law and therefore there is no absolute Right. . The right has to be exercised
with absolute dedication to the profession and by working within the four
corners of the law. That in turn would earn a favorable & empowering
legislation to exercise the right to profession guaranteed by the Constitution
Of India. So let us all salute the fundamental law of
India – The Constitution of India and live up to the declaration in the
Preamble.
