The Right Against Self-Incrimination in the Digital Age in India

Mobile phones have become extensions of our lives. In a criminal investigation, they can be used to track conversations, expenditure, location, and movement, and can become pivotal to the case against an accused. In this context, the question of whether a person can be forced to hand over passcodes of their electronic devices, which could lead to self-incriminating information being recovered from those devices, is being increasingly discussed in India. Directly and indirectly, the issue has arisen in multiple cases. Legally, it raises intricate questions at the interface of the right against self-incrimination and the right to privacy.

Reality around law enforcement

Although, in principle, the right against self-incrimination and the right to privacy are strongly established in Indian constitutional jurisprudence, a lack of consensus with respect to the scope of these rights, as well as the application of the law and practical issues with law enforcement, makes it very difficult for individuals to assert these rights. To start with, any assertion of constitutional rights by an accused person runs up against the very wide powers of search and seizure that the Indian police enjoy under the Code of Criminal Procedure. Rooted in a colonial, law-and-order logic that has never been challenged in a sustained way, the result of this is that on the ground, the police can exercise their powers without significant judicial oversight or scrutiny. Recently, the Hyderabad police stopped people on the road to check their phones at random supposedly in an effort to crack down on narcotics and went through their Whatsapp conversations and calls to look for words such as “drugs”. So in India, it is not just persons accused of crimes whose privacy is violated by the police but also citizens on the road who are simply passing by a police officer who decides a crime may be committed by you, without any legal backing. Critique against this action by the police was simply justified by commenting that police are allowed to check any electronic device to curb suspicious activity. As the value of privacy is generally deemed next to nothing in India, such blatant violations by the police do not generally lead to any response from the judiciary and people tend to comply with the high-handedness of the police.

This practical power enjoyed by the police is further buttressed by the interpretive vagueness within Indian law on self-incrimination, which creates a grey zone around enforcement and - especially in a country such as India, where the rule of law faces many challenges - enures to the benefit of State agencies. In particular, there is little clarity in law about whether compelling a person to open their electronic devices for investigating authorities breaches the right against self-incrimination.

Law against self-incrimination and its limitations

While Article 20(3) of the Indian Constitution provides the right against compelled self-incrimination, judgments have limited it to “testimonial compulsion”, which means that investigating authorities can compel one to give physical evidence such as fingerprints, DNA, blood. At the same time, the Supreme Court of India has also held that documentary evidence constitutes part of “testimony” within the meaning of the right, and requiring a person to produce documentary evidence is tantamount to compelling them to be a “witness against themselves.” This creates the “grey area” referred to above, where the contents on one’s device might be protected by Article 20(3), but the method of obtaining them (a fingerprint or a passcode) might not - a grey area that, for the reasons explained above, benefits the State. The lack of clarity is because the Court has - as yet - failed to set down a clear rationale for the right against self-incrimination. In some judgments, it has hinted that the purpose of the right is to facilitate the discovery of truth (a rationale that would enable judges to interpret ambiguities in favour of law-enforcement), while in other cases it has observed that the purpose is to protect an individual’s due process rights, and maintain the balance of power between the individual and the State (including, crucially, protecting an individual’s mental privacy). An extension of this logic would cover both the contents of the device and the means for obtaining them - however, again, in the absence of a judgment squarely on the point, it is very difficult to stop the police until after the fact.

This lack of clarity is further muddled by conditions being provided by judges in some cases where bail is granted directing the accused to provide access to all devices, although this is treated in the light of cooperating with the investigation. As the legal field is not clear on whether an individual being compelled to provide her password during the course of an investigation is against her right against self-incrimination and due to the overarching fear of the wrath of the police in not cooperating with the investigating, coupled with a general lack of awareness of one’s legal rights, most people allow the police access to their phones immediately and hand over possibly incriminating information. It is also not a practice in India for lawyers to be allowed during questioning of their clients- this leads to the police being able to exert pressure on them to give up their passwords or biometric information without being able to consult their lawyers. So while the law may provide protections against self-incrimination and for privacy, these will not matter when confronted by the police.

Conclusion

While better clarity on law is certainly a factor that might ameliorate the concerns atleast for a certain class of society so as to be able to assert their rights strongly, for the larger section of India, more practical concerns related to policing must be solved such as resource-crunches of the police force during investigations and transparency in police stations so that their right to privacy and against self-incrimination is not routinely violated by law enforcement agencies.