No License for this Spy: Regulating Private Investigators in India

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Private investigation is a popular service among customers who are in the market of marriage or divorce, business partnerships or competition, among many other reasons. But to what extent should private detectives spy and report on their targets?

As of date, India has no legislation regulating the profession of private investigators. In the absence of a regulatory framework, people who offer this service risk being charged with criminal offences by the individuals they are investigating.

Consider one such criminal offence i.e. stalking. The Indian Penal Code [1] does not consider the act of a man following and contacting a woman, or monitoring her internet/email/electronic communication usage, as stalking, if (roughly speaking) it is established that:

(i) the man is entrusted the responsibility by the State to prevent and detect crime (and he was pursuing the woman for the purpose of preventing or detecting a crime); or

(ii) the man was following/contacting/ “e-stalking” the woman under any law; or

(iii) in the particular circumstances, the man’s conduct was reasonable or justified.

As regards the third exception, a court of law may not be sympathetic to the need of hiring a private investigator in every case.

Similarly, the Information Technology Act (as amended from time to time) criminalizes unauthorized access to computers, systems or networks or downloading/copying/extraction of databases or information without permission of the owner/person-in-charge.[2] It is similarly a criminal offence to access and then disclose any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned.[3]

Private investigators offer valuable services not only to individuals with private interests, but to non-government organizations and police authorities seeking to thwart organized crime, as well as companies investigating cases of corporate fraud or misconduct by employees. For this reason, countries such as Australia, Singapore, the United Kingdom and United States have permitted licensed private investigators to operate within the regulatory limits. Licensing often requires a candidate to undergo rigorous training or demonstrate extensive work experience, depending upon the jurisdiction. It is desirable for India to industry of private investigations to thrive under adequate regulation that defines the roles of investigators and rights of the investigated.

When the Private Detective Agencies (Regulation) Bill, 2007 was introduced to the Rajya Sabha, the details of license required to conduct private investigations was not addressed in the text of the proposed legislation. Notably, the Bill proposed that the violation of the rights of an individual to privacy and freedom by an agent would be made a criminal offence.[4] This aspect is uncontroversial, since right to privacy can against private actors.[5] However, the Bill did not elaborate on the standards of privacy (except by delegating the power to draft a code of conduct to the State).[6] From the text of the Bill, it was unclear how the standards of privacy applicable to private detectives would adapt to the rapidly evolving jurisprudence of privacy in a digital era, or the mechanism of enforcing privacy standards among private detectives/clients who have little commercial incentive to limit their investigation.

The proposed legislation presented questionable regulatory mechanisms, such as proposing that the license to practice should be granted to agencies instead of individual agents themselves. The need for such a legislation has been made apparent by the recent directions of the Delhi High Court, hearing the plea of a woman who claimed that her private details had been shared by a private investigator to a foreign national for the purposes of a court dispute in the USA.[7] Future attempts at reviving this (or a similar) legislation must not only implement a more effective enforcement mechanism for investigative practices and privacy standards, but formulate standards limiting the access of private investigators to private data/information despite the constant development of new technologies that enable greater surveillance.[8]

[1] Section 354, Indian Penal Code, 1860

[2] Section 43 (a), Information Technology Act, 2000. [3] Section 72, Information Technology Act, 2000. [4] Section 28, Private Detective Agencies (Regulation) Bill, 2007. [5] K.S Puttaswamy (Retd.) v. Union of India, (2015) 8 SCC 735. [6] Section 4(1)(f), Private Detective Agencies (Regulation) Bill, 2007.

[7] See: livelaw.in/news-updates/delhi-high-court-centres-response-regulate-private-detectives-182227?infinitescroll=1. [8] Omer Tener and Jules Polonetsky, A Theory of Creepy: Technology, Privacy and Shifting Social Norms, 16 Yale Journal of Law & Technology 59 (2013).