Detective Invading Privacy and Infringing Fundamental Rights: When Investigation Becomes an Intrusion

Authored by Vaishnavi Kumari, pursuing an LL.M. at Gujarat National Law University, Gandhinagar

Private Detectives, Privacy and Fundamental Rights

Introduction

A Public Interest Litigation was filed before the Delhi High Court seeking review of the status of private investigators and detective agencies in India. The petition also sought reconsideration of the Private Detective Agencies (Regulation) Bill 2007, which had been introduced before Parliament and was considered by a Parliamentary Standing Committee. However, the absence of this legislation continues to raise fundamental questions of the legality, legitimacy, and accountability of private investigation agencies in India. The issue becomes especially pertinent when viewed from the lens of fundamental rights and human rights. Private investigators are routinely engaged when surveillance, collection of personal information, tracing, photographs and video, and collection of material which can be used to advance a legal action are required. Yet, the lack of a clear legal framework is a source of intrusive practices that may interfere with the right to privacy.

Legitimacy of Private Detectives under the Constitution

The legal position becomes evident when the statutory definition of 'investigation' is considered. According to the Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, investigation is defined under section 2(1)(l) as proceedings for the collection of evidence by a police officer or by a person, other than a Magistrate, who is authorised by a Magistrate for that purpose. The statutory definition does not contemplate investigation being an activity open to anyone. Similarly, the provisions related to submission of an investigation report contemplate its submission by the investigating officer (IO) to the court. This distinction is important since private detective agencies do not have this statutory authority. The ability to collect information does not automatically confer legal status upon the investigator, nor will it guarantee that the material will be accepted by a court. The lack of legal recognition does not affect the fact that private detectives operate and perform investigative functions for individuals, corporations and litigants. This, however, raises the question of regulation, for while the practice of private investigation is a recognised occupation, the areas in which a person may legitimately operate are not formally defined. In this regard, the connection between the concept of private investigation and the right to privacy is of interest.

The right to privacy is not an irrelevant nuisance but one of the aspects of personal freedom. Article 17 of the ICCPR protects individuals from unlawful interference with their privacy, family, home and correspondence; India has ratified this document, and the right to privacy is implicitly protected as part of the right to life and personal liberty under Article 21 of the Constitution. In particular, the formulation of Article 21, which states that no person shall be deprived of liberty, has been interpreted by the judiciary as including the protection of each person’s right to live as he or she chooses, including the right to be free from unwarranted surveillance of one’s movements and personal interactions. It is noteworthy that until recently, the right to privacy was not explicitly recognised in India. This changed in 2017, when in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court ruled that the right to privacy was indeed a fundamental right.

This fundamental right becomes relevant in the context of private investigation in that surveillance conducted by private detective agencies can interfere with an individual’s private life and constitute a form of unlawful inspection. While state surveillance may be regulated by law and limited by constitutional rights, the lack of legal recognition of private detective agencies creates a situation in which individuals have no recourse in response to such interference with their privacy. Furthermore, private detective agencies can claim that surveillance is conducted on a legitimate basis. According to the Constitution, every citizen of India has the right to pursue any profession; this right is also found in Article 6 of the International Covenant on Economic, Social and Cultural Rights. However, as stated in Article 19 (6) of the Constitution, this does not affect the right of the state to impose restrictions in the interests of the general public.

Conflict with Right to Work

When considering private investigations, it is essential to recognise that while the profession of a private detective may fall under the right to work, such investigations cannot, under any circumstances, be considered a legitimate basis for interference with the life and privacy of others. In fact, according to the Supreme Court ruling, the state’s responsibility to protect citizens extends to all areas, including those falling under the competence of private detective agencies.  The Supreme Court has held that where a state fails to perform its duty to protect individuals in the exercise of their fundamental rights, such failure may be grounds for judicial review. It should be noted that the right to privacy is not explicitly protected in the Indian Constitution, but rather inferred from the right to life and personal liberty under Article 21.

Accordingly, a person who becomes a victim of such surveillance has the right to turn to the judiciary and request protection from it. The Supreme Court ruling in Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai (1986) provides some insight into this issue. In its decision, the Court noted that if the state imposes restrictions on a business in the name of public interest, such restrictions must be interpreted as restrictions for the benefit of the citizens.

Evidentiary Value of the Evidence Collected by Investigators

If the state does not impose restrictions on the means of surveillance that may be used by private investigators, the collection of personal data, and the use and storage of video and audio recording devices, this may lead to the abuse of citizens. It is therefore not a matter of banning this practice altogether, but rather of establishing restrictions that will ensure privacy rights.

The activities of investigators are not limited to investigating marital infidelity or personal conflicts. Investigators may be engaged to locate missing persons, identify those deliberately avoiding contact, locate heirs or next of kin for estate-related purposes, trace children who have been taken or concealed by a non-custodial parent, locate witnesses required for civil or criminal proceedings. These activities demonstrate that private investigation can serve legitimate social and legal purposes. The question to be framed should therefore not be solely with reference to whether private investigators should exist. This is more important than the question of whether their activities should be conducted and what safeguards should govern the collection, preservation and use of information. One of the most important issues in this regard is the admissibility of evidence collected by private investigators. The fact that material has been gathered by a private investigator does not necessarily dictate that it will be admissible in court. The courts are generally interested in whether it is relevant, whether it was gathered by lawful means, whether its authenticity can be established, and whether its integrity is preserved. The manner of its collection, therefore, is of crucial importance. Accordingly, private detective agencies in India should be brought within a dedicated registration and licensing framework, which would establish clear standards for lawful evidence collection, preservation, and professional accountability.

Evidence gathered by investigative experts can be of different types. Documentary evidence can include emails, financial records, business-related documents and contracts. When introducing this type of evidence in court, the authenticity of such items as well as the way of their obtaining should be considered. Photographic and video evidence can be critical too. Videotaped surveillance can be of great evidentiary value provided that it is recorded lawfully and there was no expectation of privacy. Recording a person in their private residence without a valid reason, on the contrary, may result in charges of infringement of the right to privacy.

Finally, interviews and witness statements are another type of evidence that a private detective can collect. A detective can give his evidence in court, but the problem is that witness statements are often hearsay, and witnesses’ presence in court is not always possible. Therefore, a private detective’s testimony cannot replace the direct evidence of a witness who saw the crime or knows about it firsthand.

Supreme Court on Privacy and Regulation of the Role of Detectives

The chain of custody refers to the documentation of how evidence is collected, handled, transferred and stored. Maintaining an appropriate chain of custody helps ensure that the evidence placed before a court is the same evidence that was originally collected, that it has not been altered, substituted or tampered with. A professional investigator should therefore record each stage of the collection process, store evidence securely and be capable of explaining how the material was obtained and preserved.

The importance of these issues has been brought into focus with a significant development before the Supreme Court in 2026. In Himanshu Chordia v. State of Rajasthan, the Supreme Court drew attention to the absence of a comprehensive regulatory mechanism for private investigation. The matter arose from matrimonial maintenance proceedings with a large number of photographs and videos placed before the Court concerning an alleged relationship outside marriage. A Bench including Justice Sanjay Karol and Justice Vipul M. Pancholi observed that private investigation constitutes an “area sans regulation”. The Court noted that the photographs had presumably been received from a third party and the method of their production suggested involvement of private investigators or detectives. Approximately 92 videos and 237 photographs had reportedly been furnished before the Court. The Supreme Court raised several questions: who had taken the photographs; whether the individuals who had collected them had the requisite authorisation; how the material had been stored; whether the photographs and videos were genuine; whether technological manipulation or morphing had taken place; and what were the implications of the collection and use of such material for privacy and personal-data protection.

The questions raised by the Court illustrate that the problem is not limited to whether electronic evidence satisfies technical requirements of admissibility. What emerges is the issue of the circumstances in which the evidence came into existence, the identity and authority of the person who collected it, its preservation and authenticity, and the rights of the individuals whose personal information is captured. The Court stressed that there was a need for a balanced concept of regulation-protecting individuals from excessive intrusion on the one hand, providing legitimate investigators with professional boundaries on the other hand.

The Supreme Court also referred to the Private Detective Agencies (Regulation) Bill 2007. The contemplated legislation included regulatory boards, licensing requirements, machinery for suspension and cancellation of licenses, maintenance of records and restrictions upon investigations falling within the domain of statutory or regulatory authorities. The Court also made reference to Navinchandra N. Majithia v. State of Meghalaya (2000), in which the Supreme Court had noted that the Code of Criminal Procedure does not recognise private investigating agencies.

The Supreme Court emphasised that the need to develop a mechanism to deal with private investigation and privately collected evidence could not be overlooked. The Court also suggested that legislative models from other jurisdictions could be considered, including Queensland in Australia, Ontario in Canada, the Netherlands, and Singapore. The direction to the Ministry of Law and Justice and the Law Commission illustrates that private investigation is no longer an issue which falls within the realm of general regulation of professional practice.

On the one hand, we have the freedom to pursue legitimate occupation according to Article 19(1)(g); on the other, we have the individual's constitutionally protected right to privacy, liberty and dignity. Neither should be considered detached from the other. The development of the right to privacy under Article 21, particularly since Justice K.S. Puttaswamy (Retd.) v. Union of India, makes it harder to treat private intrusion as a matter of merely personal inconvenience.

Conclusion

The central issue of this discourse should not be the complete ban on private investigation. The role of private eyes in finding people, obtaining information and assisting in both civil and commercial disputes is unquestionably useful. However, the more pressing problem is how to create the regulatory regime which will delineate their acceptable scope, set licensing and professional standards, regulate the gathering and storage of personal information, set up mechanisms for complaints and remedies, and set out consequences for unlawful investigative practices. It could set out minimum standards about documentation, preservation, authenticity and chain of custody, while ensuring that the investigators understand the limitations imposed by privacy and other fundamental rights.