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The right against self-incrimination finds its earliest embodiment in the medieval law of the Roman church in the Latin maxim, ‘Nemon tenetur seipsum accusare’ which means that ‘No man is obliged to accuse himself’. The right gradually evolved in common law through protests against the inquisitorial and manifestly unjust methods of interrogation of accused persons, back in the middle ages in England. [i]

According to Black’s Law Dictionary, self-incrimination is a declaration or act that occurs during an investigation in which a person or witness incriminates themselves either explicitly or implicitly. To put it another way, it is the act of implicating or exposing oneself to criminal prosecution. Article 20(3) of the Indian Constitution protects an accused against self-incrimination under compulsion: “No person accused of an offence shall be compelled to be a witness against himself.” Article 20 of the Indian Constitution was granted non-derogable status in 1978, under the Constitution (Fourty-fourth Amendment) Act, 1978, i.e. the state has no legal basis, even in a state of emergency, to refuse to honour this right. This is a testimony to the importance it has been accorded in our Constitution.

With the rapid increase in the usage of smartphones and other personal gadgets by the Indian population, the Internet has essentially become a forum for the transmission of thoughts and ideas. It has evolved to be a gold mine of not just knowledge, but also information that extends to the personal data of the people. These gadgets give an insight into the personality and the activities of an individual and are deemed to become a vital source of information that can be used against an individual when required. In an age such as this, the question of privacy becomes a critical question to answer. Both, the right to privacy and the right against self-incrimination, are fundamental rights under the Indian Constitution, the former is explicitly provided for under Article 21 of the Constitution,6 while the latter has been read into Article 20(3) of the Constitution.

This interrelationship between privacy and the right against self-incrimination has not been explored much by the Indian courts, which have been altogether reluctant to engage with either right in a dynamic manner. A few years ago, however, the Supreme Court examined Article 20(3) in a detailed manner in Selvi v. State of Karnataka[ii], highlighting the interrelationship between Article 21 and Article 20(3), by analysing how privacy and the right against self-incrimination share a fundamentally complementary relationship. The judgment also marked a shift in the nature of the Indian criminal process.

The purpose of this article is to trace and analyse the judicial approach towards Article 20(3) of the Constitution, with particular reference to the digital age. The issues arising, require Courts not only to consider the scope of constitutional protections by also to interpret existing provisions of the Criminal Procedure Code, 1973, and Information Technology Act, 2000. As of now, this matter has been taken up by Courts only in two instances.

Virendra Khanna v. State of Karnataka, 2021

Brief facts of the case:

A case under the NDPS Act and the Foreigners Act was registered against the Petitioner. The police had seized the petitioner’s mobile, and laptop among other items, and asked him to disclose his passwords. On the refusal of the petitioner to do the same, the police filed two applications before the Trial Court. The police prayed to conduct a polygraph test without the petitioner’s consent, and in the other, an order to direct the petitioner to disclose the required passwords. Both applications were allowed by the Trial Court.

The Present Petition was filed, seeking the Court to quash the orders to disclose the passwords and conduct the Polygraph Test.

Issues Raised:

1. What is the specific legal regime under which police can seek access to a digital device for pursuing its investigation?
2. Whether providing a password, passcode, or Biometrics amount to self-incrimination or testimonial compulsion?
3. Whether providing passwords, passcode or biometrics violate the right to privacy?

View Opined by the High Court of Karnataka:

In regards to the first issue, the Court held that as per Section 93 of the CrPC, a search warrant could be issued by the Court in order to look through a smartphone or a computer system for the purpose of investigation. According to the Court, section 91 of the CrPC enables a right in favor of the Court or officer in charge of a Police Station to order from a person’s possession any document for the purpose of investigation. Hence, the court observed that passwords or biometrics come within the ambit of the term, ‘document’ as mentioned in Section 91. It further relied on the provision of Section 100 of the CrPC to establish the point that on the production of a search warrant, any person in charge of a closed place would be obliged to allow free access to the person executing a search warrant. Thus, a person possessing an electronic device/gadget must cooperate with the investigation officer and hand over access to their device. In its final assessment, the Court found that disclosure of passcode does not constitute a violation of the right against self-incrimination as CrPC provides a mechanism for disclosure of passcode/biometrics.

To the second issue of protecting the right against self-incrimination, the High Court ruled that compelling a person to give up a password and/or biometrics to unlock a digital device did not attract the fundamental right against compelled self-incrimination as it was not the kind of evidence protected by the prohibition: providing a password did not disclose anything incriminating, and it was not the “testimonial compulsion” which Article 20(3) sought to protect. The Court relied on the judgment of State of Bombay v. Kathi Kalu Oghad[iii], and observed that an order to provide a password, passcode, or biometric would not amount to testimonial compulsion as the petitioner is not answering any question that would expose the petitioner to guilt. Disclosure of such details is similar to that of supplying fingerprints or thumb impressions as they are merely evidence for the officer to prove and establish a certain fact in a court of law and do not amount to forced testimony from the accused. The mere presence of a document on a smartphone or email account wouldn’t establish the guilt or innocence of the accused, and any documents so recovered will have to be proved according to the evidence law. 

With reference to the issue of violating the right to privacy of an accused, the Court acknowledged that gaining access to one’s device although for a specific reason, provides complete and free access to all aspects of their activities on the device. The Court noted that the use of any such date during the process of investigation would not amount to a violation of the right to privacy, as it was protected under the exceptions. It also observed that unlawful disclosure of any material acquired during the process of investigation would amount to an actionable wrong.

CBI v. Mahesh Kumar Sharma[iv]

An application for disclosure of the passcode of the computer seized from the accused was moved before the Delhi Special CBI Court, relying on the judgment of Virendra Khanna v. State of Karnataka. [v]

View Opined by the High Court of Delhi:

The Court held that sections 102 and 161 of the CrPC give investigators the authority to seek any information or document from any person including the accused, but at the same time, the accused (or a witness) is not obliged to give any answer which is self-incriminatory. The Court further ruled that forcing a witness to provide a password or security pattern violates Article 20(3) of the Indian Constitution. Contrary to the Karnataka High Court, the High Court of Delhi distinguished the password from biometrics in light of the Criminal Procedure (Identification) Act, 2022.  

The Court also noted the difference between a testimonial and non-testimonial evidence.

“For example, a testimony in oral (like voice sample) or written form (like specimen handwriting or signature) may be personal yet they can be taken under compulsion from an accused if it is to be used for the purpose of identification or comparison with already available voice recording or signature/handwriting which is/are obtained from other sources like seizure of document or chance print, fingerprints of the scene of crime, etc.”

The Court relied on the judgment of Selvi v. State of Karnataka [vi]and observed that the password is protected within the ambit of personal information that resides in the mental zone and therefore disclosure of passcode would amount to a violation of the right guaranteed by Article 20(3) of the Indian Constitution.

Conclusion

This topic of self-incrimination in the digital age has a wide range of interpretations, necessitating the formulation of new principles in order to comply with constitutional provisions. Law is a living process that evolves in response to changes in society, science, ethics, and so on. The Legal System should incorporate scientific developments and advances as long as they do not violate fundamental legal principles and are for the benefit of society. The criminal justice system should be founded on principles of justice and equity.

It is urgent that the Supreme Court of India reconsider and study this issue. It is critical for the Court to consider an individual’s rights as opposed to the State’s interests and to strike a balance between the two.

It should be the responsibility of the state to ensure that the rights of its citizens are protected and that every individual has a fair trial and that laws are applied objectively, allowing for the creation of a society that balances conflicting interests at various levels. Individual state balance can only be achieved by empowering the state in its efforts to maintain public order and control crime while also imposing clear and distinct limits on such power. A system of accountability and information dissemination that enforces the public’s ‘Right to Know’ are essential features of such limits. At the same time, quality, secrecy, and security must be maintained.

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ARTICLE WRITTEN BY DIVYA SHREE GN

[i] 180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right to Silence,

3, (2002).

[ii] (2010) 7 S.C.C. 263 (India)

[iii] AIR 1961 SC 1808

[iv] 2022 SCC OnLine Dis Crt (Del) 48

[v] Supra (iii)

[vi] Supra (ii)