The Impact of the Puttaswamy Judgement on Law Relating to Searches

The Impact of the Puttaswamy Judgement on Law Relating to Searches

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Volume 15 Issue 1 ()

The landmark Puttaswamy judgement has declared the right to privacy as a fundamental right. Such a right will have a significant impact on the construction of provisions that empower law enforcement authorities to undertake searches. In this paper, we exhaustively delineate the jurisprudence in India that relates to the overlap between the power to conduct searches and the right to privacy. Search provisions in India are present in various statutes such as the Code of Criminal Procedure, 1973. The established jurisprudence on privacy prior to Puttaswamy subjected search provisions to a relatively less rigorous standard of legality. In light of the Puttaswamy judgment, we discuss the normative content of the judgement itself, and draw an analysis of the comparative jurisprudence, to recommend the manner in which search provisions should be construed and their legality, analysed. We argue that search provisions are especially vulnerable to a privacy challenge when adequate procedural safeguards are not put in place, and further argue for a rigorous proportionality analysis. Finally, we test some pre-existing search provisions to demonstrate the manner in which Indian courts should determine the validity of searches and search provisions in light of the right to privacy.

Cite as: Pratyay Panigrahi & Eishan Mehta, The Impact of the Puttaswamy Judgement on Law Relating to Searches, 15 NUJS L. Rev. 1 (2022)