Topic: Distt. Registrar & Collector v/s Canara Bank
Distt. Registrar & Collector v/s Canara Bank
Bench: Cji R.C. Lahoti, Ashok Bhan - CASE NO.: Appeal (civil) 6350-6374 of 1997 - J udgment: With : C.A /2004 (Arising Out Of Slp (C) No. 11607/2001) - Date Of Judgment: 01/11/2004
Leave granted in SLP (C) No. 11607/2001.
Section 73 of the Indian Stamp Act, 1899 as incorporated by Andhra Pradesh Act No. 17 of 1986, by amending the Central Act in its application to the State, has been struck down by the High Court of Andhra Pradesh as ultra vires the provisions of the Indian Stamp Act as also of Article 14 of the Constitution. The District Registrar and Collector, Registration and Stamps Department, Hyderabad and the Assistant Registrar have come up in appeal by special leave. Relevant Statutory Provisions under the Central Act : Section 73 of the Indian Stamp Act (before the insertion of the text under the impugned State Legislation in its applicability to the State of Andhra Pradesh) reads as under:-
"73. Every public officer having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorized in writing by the Collector to inspect for such purpose the registers, books, papers, documents and proceedings, and to take such notes and extracts as he may deem necessary, without fee or charge."
The term 'public officer' is not defined in Section 73 nor in the interpretation clause. However, the term 'public office' is found to have been used in Section 33. Sub-Section(3) of Section 33 provides as under:-
"33. (3) For the purposes of this section,
in cases of doubt ___
(a) the State Government may determine what offices shall be deemed to be public offices; and
(b) the State Government may determine who shall be deemed to be persons in charge of public offices."
The term 'public officer having in his custody any registers etc.' as occurring in Section 73 can be defined by having regard to the expression 'public office' as occurring in Section 33. The central legislation including Section 73 took care to see that the power to inspect was confined only to documents in the custody of public officer which documents would necessarily be either public documents or public record of private documents. The purpose of inspection is clearly defined. It is permissible to have inspection carried out only in these circumstances:- (i) when it may tend to secure any duty, or (ii) when it may tend to prove any fraud or omission in relation to any duty, and (iii) when it may tend to lead to the discovery of any fraud or omission in relation any duty.
The State Amendments (1986)
The A.P. Act No.17 of 1986 has amended the Indian Stamp Act, 1899 in its application to the State of Andhra Pradesh. The Act was reserved by the Government of A.P. on 24th April, 1986 for the consideration and assent of the President and received such assent on 17th July, 1986 which was published in the Andhra Pradesh gazette for general information on 22nd July, 1986. Out of the several amendments made by the A.P. Act 17 of 1986, the relevant one for our purpose is Section 73 as substituted in place of the original Section 73 of the Indian Stamp Act by Section 6 of A.P. Act No.17 of 1986. The same is reproduced hereunder:-
6. For section 73, of the principal
Act, the following section shall be
73 (1) Every public officer or any
person having in his custody any registers,
books, records, papers, documents or
proceedings, the inspection whereof may
attend to secure any duty, or to prove or
lead to the discovery of any fraud or
omission in relation to any duty, shall at all
reasonable times permit any person
authorized in writing by the Collector to
enter upon any premises and to inspect for
such purposes the registers, books, records,
papers, documents and proceedings, and to
take such notes and extracts as he may
deem necessary, without fee or charge and if
necessary to seize them and impound the
same under proper acknowledgement:
Provided that such seizure of any
registers, books, records, papers, documents
or other proceedings, in the custody of any
Bank be made only after a notice of thirty
days to make good the deficit stamp duty is
Explanation : - For the purposes of
this proviso 'bank' means a banking
company as defined in section 5 of the
Banking Regulation Act, 1949 and includes
the State Bank of India, constituted by the
State Bank of India Act, 1955 a subsidiary
bank as defined in the State Bank of India
(Subsidiary Banks) Act, 1959, a
corresponding new bank as defined in the
Banking Companies (Acquisition and Transfer
of Undertaking) Act, 1970 and in the
Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1980, a Regional Rural
Bank established under the Regional Rural
Banks Act, 1976, the Industrial Development
Bank of India established under the
Industrial Development Bank of India Act,
1964, National Bank for Agriculture and
Rural Development established under the
National Bank for Agriculture and Rural
Development Act, 1981, the Life Insurance
Corporation of India established under the
Life Insurance Corporation Act, 1956, The
Industrial Finance Corporation of India
established under the Industrial Finance
Corporation Act, 1948, and such other
financial or banking institution owned,
controlled or managed by a State
Government or the Central Government, as
may be notified in this behalf by the
(2) Every person having in his
custody or maintaining such registers,
books, records, papers, documents or
proceedings shall, when so required by the
officer authorized under sub-section (1),
produce them before such officer and at all
reasonable times permit such officer to
inspect them and take such notes and
extracts as he may deem necessary.
(3) If, upon such inspection, the
person so authorized is of opinion that any
instrument is chargeable with duty and is not
duly stamped, he shall require the payment
of the proper duty or the amount required to
make up the same from the person liable to
pay the stamp duty; and in case of default
the amount of the duty shall be recovered as
an arrear of land revenue.
The Statement of Objects and Reasons states that the Government have been considering for quite some time the question of plugging the loopholes in the Indian Stamp Act, 1899 in its application to this State so as to arrest the leakage of stamp revenue and also to augment the stamp revenue in the State. The State of Andhra Pradesh in doing so was inspired by the amendments made in the State of Karnataka. As to Section 73 the SOR states "As per Section 73 of the said Act, the Collector or any person authorized by him shall inspect any public office and the public officer having in his custody any registers, books, records etc., shall permit him to take copies of extracts of those records. However, the inspecting officer cannot seize the deficitly stamped documents and impound the same during inspection. On account of this loophole, the inspecting officers are not able to seize and impound the deficitly stamped documents and collect the deficit stamp revenue. It has therefore been decided to empower the Inspecting Officers to enter any premises and seize the documents and impound them."
[For a detailed Statement of Objects and Reasons see The Andhra Pradesh Gazette Extraordinary Part IV-A dated March 20, 1986 pp. 9
The A.P. State Rules (1986)
In exercise of the powers conferred by Section 75 of the Indian Stamp Act, 1899 and of all other powers hereunto enabling and in supersession of the earlier rules the Governor of Andhra Pradesh framed rules for the collection of duties secured in the course of inspection under Section 73 of the Indian Stamp (Andhra Pradesh Amendment) Act, 1986 which rules came into force on the 16th day of August, 1986. The relevant part of the rules is extracted and reproduced hereunder:
1. In these rules unless the context otherwise
(a) 'Act' means, the Indian Stamp (A.P.
Amendment) Act, 1986.
(b) "Inspector-General of Registration and
Stamps" includes the person authorized in writing by him as the Collector appointed under section 73 of the Act to exercise the powers under that Section.
(c) 'Head of Office' means, the head of the
Office inspected by the Inspector General of
Registration and Stamps under section 73.
(d) 'Section' means a section of the Act.
(e) 'Any premises' includes any public office
or any place where registers, books, documents etc., are kept under the custody of a person the
inspection whereof may tend to secure any duty.
2. (1) The notes of inspection under
section 73 shall be sent to the Head of office with a copy to the Head of the District office, if the office inspected is subordinate to him, or with a copy to the Head of the Department concerned, if the office inspected is the District or Regional Office.
(2) The first reports of compliance shall be
sent to the Inspector General of Registration and Stamps, immediately on receipt of the notes of
inspection by the Head of Office, with a copy to the Head of the District Office concerned, if the office inspected is subordinate to him or with a copy to the Head of the Department, if the office inspected is a District or Regional Office.
3. When deficitly stamped documents are
detected during the course of inspection the
following procedure shall be followed:-
(i) The Inspector General of Registration and
Stamps or the person authorized by him shall seize and impound such documents and after giving an opportunity to the parties levy deficit duties if any, without penalty and collect the same from the
persons liable to pay under sub-section (3) of the section 73 and add the following certificate on the original document:-
xxx xxx xxx
(ii) If the parties fail to pay the deficit duty under sub-rule (i), it shall be collected by the head of office. The amounts so collected shall be remitted to the Treasury under the following head of account by means of a challan.
xxx xxx xxx
(iii) If the parties failed to pay such deficit duties, the Inspector General of Registration and Stamps shall forward the original document to the Collector exercising powers under section 48 of the Indian Stamp Act, 1899 over the area for effecting recovery by coercive process. After the amounts are so collected, the procedure laid down in sub-rule (i) shall be followed.
(iv) In the absence of original documents,
and on the basis of copies of such documents, if they are found to be not duly stamped, the procedure for collection of the duty as laid down in rule (iii) shall be followed :
4. If the parties are aggrieved by the levy
of duties they may apply to the Inspector General of Registration and Stamps for revision before the certificate prescribed under rule 3 is added.
5. xxx xxx xxx
6. xxx xxx xxx
[For full text of Rules see Andhra Pradesh Gazette, Rules supplement to Part-II Extraordinary dated August 14, 1986 pp. 4-77.]
There were 25 writ petitions filed in the High Court. Out of these, 11 were by different banks. A few writ petitions were filed by institutions, corporate or incorporate bodies and a few were filed by sugar companies. The grievances arose because the documents executed between private parties and received and retained in the custody of the bank in ordinary course of their loan advancing transactions were inspected and then the banks were served with a request to remit the amount of deficit duty on the documents inspected and to recover the same from the parties concerned. The grievance of the sugar companies is that in the course of their business they were entering into agreements with the sugarcane growers selling sugarcane to the sugar companies in compliance with the provisions of A.P. Sugarcane Control Order, 1965 in the proforma prescribed by Control Order. Several agreements entered into in the prescribed proforma were treated as unstamped (though they were not liable to be stamped, in the submission of sugar companies) and therefore were sought to be impounded. The grievance of private persons is that the documents in their possession are sought to be inspected, impounded and levied with duty though they were not tendered in evidence nor produced before any public office.
A perusal of the judgment of the High Court shows that in holding the impugned Section 73 of the Act ultra vires of the Constitution and other provisions of the Indian Stamp Act, the High Court has arrived at four findings: firstly, that the amended Section 73 is inconsistent with the other provisions of the Act; secondly, that the provision is violative of the principles of natural justice; thirdly, the provision is arbitrary and unreasonable and hence violative of Article 14 of the Constitution; and fourthly, there are no guidelines provided for the exercise of power by the authorized persons under the amended Section 73 which is either arbitrary and unreasonable or vitiated on account of excessive delegation of statutory powers.
During the course of hearing Mrs. K. Amareswari, the learned senior counsel for the appellants has vehemently attacked the correctness of the impugned judgment submitting that the A.P. Amendments are directed towards safeguarding the revenue of the State and striking at the evil of stamp duty evasion, and therefore the validity of such reasonable legislation was not liable to be questioned as unconstitutional. On the other hand, the learned counsel appearing for the respondents have defended the judgment of the High Court by reiterating the same grounds of attack on the constitutional validity of the impugned amendment as were urged in the High Court; of course enlarging the reach of submissions by developing the dimensions thereof. We will deal with the submissions so made before us.
Nature of stamp legislation
Stamp Act is a piece of fiscal legislation. Remedial statutes and statutes which have come to be enacted on demand of the permanent public policy generally receive a liberal interpretation. However, fiscal statutes cannot be classed as such, operating as they do to impose burdens upon the public and are, therefore, construed strictly. A few principles are well settled while interpreting a fiscal law. There is no scope for equity or judiciousness if the letter of law is clear and unambiguous. The benefit of any ambiguity or conflict in different provisions of statute shall go for the subject. In Dowlatram Harji & Anr. Vs. Vitho Radhoti & Anr., (1881) 5 ILR (Bom) 188, the Full Bench indicated the need for balancing the harshness which would be inflicted on the subjects by implementation of the Stamp Law as against the advantage which would result in the form of revenue to the State; the latter may not be able to compensate the discontent which would be occasioned amongst the subjects.
The legislative competence of the State of Andhra Pradesh to amend and modify the Indian Stamp Act, a Central legislation, in its applicability to the State of Andhra Pradesh, has not been questioned and rightly so in view of the State enactment having been reserved for the consideration of the President and having received his assent under Article 254(2) of the Constitution. The attack is on the ground of unreasonableness, inconsistency and excessive delegation of powers and also on account of drastic powers having been conferred on executive authorities without laying down guidelines.
The provisions of Section 29 providing for the persons by whom duties are payable have been left untouched. So is with Section 31 dealing with 'adjudication as to proper stamp' which confers power on the Collector to adjudicate upon the duty with which a document shall be chargeable, though such document may or may not have been executed. The scheme of Section 31 involves an element of voluntariness. The person seeking adjudication must have brought the document to Collector and also applied for such adjudication. The document cannot be compelled to be brought before him by the Collector. Section 33 confers power of impounding a document not duly stamped subject to the document being produced before an authority competent to receive evidence or a person incharge of a public office. It is necessary that the document must have been produced or come before such authority or person incharge in performance of its functions. The document should have been voluntarily produced. At the same time, Section 36 imposes an embargo on the power to impound, vesting in the authority competent to receive evidence, by providing that it cannot question the admission of document in evidence once it has been admitted. None of these provisions have been amended by the State of Andhra Pradesh.
In Surajmull Nagoremull Vs Triton Insurance Co. Ltd., AIR 1925 PC 83, their Lordships of the Privy Council made it clear that the provisions of the Stamp Act cannot be held to have been framed solely for the protection of revenue and for the purpose of being enforced solely at the instance of the revenue officials.
Power to impound a document and to recover duty with or without penalty thereon has to be construed strictly and would be sustained only when falling within the four corners and letter of the law. This has been the consistent view of the Courts. Illustratively, three decisions may be referred. In Mussammat Jai Devi Vs. Gokal Chand, 1906 (7) PLR 428, a document not duly stamped was produced in the Court by the plaintiff alongwith the plaint but the suit came to be dismissed for non-prosecution. It was held by the Full Bench that the document annexed with the plaint cannot be said to have been produced in the Court in evidence and the court had no jurisdiction to call for the same and impound it. In Munshi Ram Vs. Harnam Singh, AIR 1934 Lahore 637(1), the suit was compromised on the date of first hearing and decree was passed based on the compromise. The original entry in a bahi was not put in evidence and, therefore, the Special Bench held it was not liable to be impounded. In L. Puran Chand, Proprietor, Dalhousie Dairy Farm Vs. Emperor, AIR 1942 Lahore 257, the power to impound was sought to be exercised after the decision in the suit and when the document alleged to be not duly stamped had already been directed to be returned as not proved though it was not physically returned. The Special Bench held that the document was not available for being impounded.
Though an instrument not duly stamped may attract criminal prosecution under Section 62 of the Act but the Parliament and the Legislature have both treated it to be a minor offence punishable with fine only and not cognizable. Here again it is well settled that such offence is liable to be condoned by payment of duty and penalty on the document and no prosecution can be launched except in the case of a criminal intention to evade the Stamp Law or in case of a fraud and that too after giving the person liable to be proceeded against, an opportunity of being heard.
A bare reading of Section 73 as substituted by A.P. Act No.17 of 1986 indicates the infirmities with which the provision suffers. The provision empowers any person authorized in writing by the Collector to have access to documents in private custody or custody of a public officer without regard to the fact whether the documents are sought to be used before any authority competent to receive evidence and without regard to the fact whether such document would ever be voluntarily produced or brought before a public officer during the performance of any of his specified functions in his capacity as such. The power is capable of being exercised by such persons at all reasonable times and it is not preceded by any requirement of the reasons being recorded by the Collector or the person authorized for his belief necessitating search. The person authorized has been vested with authority to impound the document. It is only in case of documents in custody of any bank that an exception has been carved out for giving a 30 days previous notice to the bank to make good the deficit stamp duty before seizing and impounding the document. Not only there is no valid reason ? none pointed out either in the pleadings nor at the hearing ___ for drawing the distinction between a bank and other public office or any person having custody of document. Even in the case of a bank, the power to adjudicate upon the need for impounding the document has been vested in the person authorized. The provision does not lay down any guidelines for determining the person who can be authorized by the Collector to exercise the powers conferred by Section 73.
It is submitted on behalf of the respondents (writ petitioners in the High Court) that impugned Section 73 (as applicable in Andhra Pradesh) interferes with the personal liberty of citizens inasmuch as it allows an intrusion into the privacy and property of the citizens. The instruments may have been kept in the residential accommodation of a person or may have been kept at a place belonging to the person and meant for the custody of the documents and both such places can be entered into by any person authorized in writing by the Collector. It was submitted that the provision is unreasonable and cannot be sustained on the constitutional anvil.
Right of privacy qua search and seizure - debate in other countries.
The right to privacy and the power of the State to 'search and seize' have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed. History takes us back to Semayne's case decided in 1603 (5 Coke's Rep. 91a) (77 Eng. Rep. 194) (KB) where it was laid down that 'Every man's house is his castle'. One of the most forceful expressions of the above maxim was that of William Pitt in the British Parliament in 1763. He said: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dare not cross the threshold of the ruined tenement".
When John Wilkes attacked not only governmental policies but the King himself pursuant to general warrants, State officers raided many homes and other places connected with John Wilkes to locate his controversial pamphlets. Entick, an associate of Wilkes, sued the State officers because agents had forcibly broken into his house, broke locked desks and boxes, and seized many printed charts, pamphlets and the like. In a landmark judgment in Entick v. Carrington: (1765) (19 Howells' State Trials 1029) (95 Eng Rep 807), Lord Camden declared the warrant and the behaviour as subversive 'of all the comforts of society' and the issuance of a warrant for the seizure of all of a person's papers and not those only alleged to be criminal in nature was 'contrary to the genius of the law of England'. Besides its general character, the warrant was, according to the Court, bad inasmuch as it was not issued on a showing of probable cause and no record was required to be made of what had been seized. In USA, in Boyd v. United States (1886) 116 US 616 (626), the US Supreme Court said that the great Entick judgment was 'one of the landmarks of English liberty.. one of the permanent monuments of the British Constitution'.
The Fourth Amendment in the US Constitution was drafted after a long debate on the English experience and secured freedom from unreasonable searches and seizures. It said:
"The right of the people to be secure in their
person, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
Art. 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks."
Art. 17 of the International Covenant of Civil and Political Rights (to which India is a party), refers to privacy and states that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his
honour and reputation."
The European Convention on Human Rights, which came into effect on Sept. 3, 1953, also states in Art. 8:
"1. Everyone has the right to respect for his private and family life, his home and his
2. There shall be no interference by a public
authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the
protection of health or morals or for the protection of the rights and freedoms of others."
The Canadian Charter of Rights and Freedoms declares: 'Everyone has the right to be secure against unreasonable search and seizure.'
The New Zealand Bill of Rights declares in sec. 21 that "everyone has the right to be secure against unreasonable search or seizure, whether of the person, property or correspondence or otherwise".
Though the US Constitution contains a specific provision in the Fourth Amendment against 'unreasonable search and seizure', it does not contain any express provision protecting the 'right to privacy'. However, the US Supreme Court has culled out the 'right of privacy' from the other rights guaranteed in the US Constitution. In India, our Constitution does not contain a specific provision either as to 'privacy' or even as to 'unreasonable' search and seizure, but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Arts. 19(1)(a) dealing with freedom of speech and expression, Art. 19(1)(d) dealing with right to freedom of movement and from Art. 21 which deals with right to life and liberty. We shall first refer to the case law in US relating to the development of the right of privacy as these cases have been adverted to in the decisions of this Court.
Privacy right in US initially concerned 'property':
The American Courts trace the 'right to privacy' to the English common law which treated it as a right associated with 'right to property'. It was declared in Entick v. Carrington (1765) that the right of privacy protected trespass against property. Lord Camden observed:
"The great end for which men entered into society was to secure their property. That right is
preserved sacred and incommunicable in all
instances where it has not been taken away or
abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it even so minute, is a trespass. No man can set foot upon my ground
without my licence but he is liable to an action though the damage be nothing."
This aspect of privacy as a property right was accepted by the US Supreme Court in Boyd v. United States (1886) 116 US 616 (627) and other cases.
From right to property to right to person:
After four decades, in Olmstead vs. United States (1928) 277 US 438, which was a case of wire-tapping or electronic surveillance and where there was no actual physical invasion, the majority held that the action was not subject to Fourth Amendment restrictions. But, in his dissent, Justice Brandeis, stated that the Amendment protected the right to privacy which meant 'the right to be let alone', and its purpose was 'to secure conditions favourable to the pursuit of happiness', while recognizing 'the significance of man's spiritual nature, of his feelings and of his intellect'; the right sought 'to protect Americans in their beliefs, their thoughts, their emotions and their sensations'. The dissent came to be accepted as the law after another four decades.
When the right to personal privacy came up for consideration in Griswold v. State of Connecticut: (1965) 381 US 278), in the absence of a specific provision in the US Constitution, the Court traced the right to privacy as an emanation from the right to freedom of expression and other rights. In that case, Douglas, J. observed that the right to freedom of speech and press included not only the right to utter or to print, but also the right to distribute, the right to receive, and the right to read and that without these peripheral rights, the specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, forced by emanations from those guarantees which help give them life and substance. It was held that the various guarantees created zones of privacy and that protection against all government invasions "of the sanctity of man's house and the privacies of life" was fundamental. The learned Judge stated that 'privacy is a fundamental personal right, emanating from the totality of the constitutional scheme, under which we (Americans) live'.
The shift from property to person was clearly declared in Warden v. Heyden: (1967) 387 US 294 (304) as follows:
" the premise that property interests control the right of the Government to search and seize has been discredited.. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and
procedural barriers rested on property concepts."
Katz and 'reasonable expectation of privacy':
Thereafter, in Katz v. United States (1967) 389 US 347, there was a clearer enunciation when the majority laid down that the Fourth Amendment protected 'people and not places'. Harlan, J. in his concurring opinion said, - in a passage which has been held to be the distillation of the majority opinion - that the Fourth Amendment scrutiny would be triggered whenever official investigative activity invaded 'a reasonable expectation of privacy'. Although the phrase came from Justice Harlan's separate opinion, it is treated today as the essence of the majority opinion (Terry v. Ohio (1968) 392 US 1. (See Constitution and Criminal Procedure, First Principles by Prof. Akhil Amar, Yale University Press (1997), p. 183 fn.42).
Stevens, J. in Thornburgh v. American College of O & G (1986) 476 US 747 observed that 'the concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole'. The same learned Judge had said earlier in Whalen v. Roe (1977) 429 US 589 that the right embraces both a general 'individual interest in avoiding disclosure of personal matters' and a similarly general, - but nonetheless distinct - 'interest in independence in making certain kinds of important decisions'. Fried says in 'Privacy' (1968) Yale Law Journal 475 (at 477) that physical privacy is as necessary to 'relations of the most fundamental sort.respect, love, friendship and trust' as 'oxygen is for combustion'. A commentator in (1976) 64 Cal L Rev 1447 says that privacy centres round values of repose, sanctuary and intimate decision. Repose refers to freedom from unwanted stimuli; sanctuary to protection against intrusive observation; and intimate decision, to autonomy with respect to the most personal of life's choices. (Prof. Lawrence H. Tribe's treatise, 'American Constitutional Law', (1988), 2nd Ed, ch.15)
Prof. Tribe says (ibid, p 1306) that to make sense for constitutional law out of the smorgasbord of philosophy, sociology, religion and history upon which our understanding of humanity subsists, we must turn from absolute propositions and dichotomies so as to place each allegedly protected act and each illegitimate intrusion, in a social context related to the Constitution's test and structure. He says (p 1307) that 'exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that context becomes crucial - to inform substantive judgment'. If these factors are relevant for defining the right to privacy, they are quite relevant - whenever there is invasion of that right by way of searches and seizures at the instance of the State. In New Zealand, in the watershed case of R v. Jeffries (1994) (1) NZLR 290 (CA), Robertson, J. stated that the reasonableness of a search and seizure would depend upon the subject matter and the unique combination of 'time, place and circumstances'. The Court made a distinction between illegality and reasonableness of the search or seizure, in the context of sec. 21 of the N.Z. Bill of Rights, 1990. It said 'a search may be legal but unreasonable; it may be illegal but reasonable'. Probably, what was meant was that a search under a Court warrant may be lawful but the manner in which it is executed may be unreasonable. Likewise, there may be very rare exceptions where a search and seizure operation is conducted without a warrant on account of a sense of grave urgency for preventing danger to life or property or where delay in procuring a warrant may indeed result in the evidence vanishing but still the search or seizure might have been conducted in a reasonable manner.
As to privacy of the home, the same has been elaborated. Chief Justice Burger stated in United States v. Orito: (1973) 413 US 139 that the Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, childbearing and education. Prof. Tribe states (p. 1412) that indeed, privacy of the home has the longest constitutional pedigree of the lot, "for the sanctity of the home has been embedded in our traditions since the origins of the Republic"; when we retreat across the threshold of the home, inside, the government must provide escalating justification if it wishes to follow, monitor or control us there. In Stanley v. Georgia: (1969)394 US 557 it was declared that however free the State may be to ban the public dissemination of constitutionally unprotected obscene materials, the State cannot criminalize the purely private possession of such material at home - "The state has no business telling a man sitting alone in his own house, what books he may read or what films he may watch".
The above discussion shows that in the United States principles regarding protection of privacy of the home have been put on strong basis and the right is treated as a personal right distinct from a right to property. The right is, however, not absolute though any intrusion into the right must be based upon probable cause as stated in the Fourth Amendment.
Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders and (3) judicial orders. The legislative intrusions must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court can go into the proportionality of the intrusion vis- `-vis the purpose sought to be achieved. (2) So far as administrative or executive action is concerned, it has again to be reasonable having regard to the facts and circumstances of the case. (3) As to Judicial warrants, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for the protection of the particular state interest. In addition, as stated earlier, common law recognized rare exceptions such as where warrantless searches could be conducted but these must be in good faith, intended to preserve evidence or intended to prevent sudden danger to person or property.