By Anurag Mohan Bhatnagar and Manvendra Shekhawat
Introduction
We live in an era in which, almost every crime has an electronic component involved, and be it a computer or mobile phones or even a small SD Card. Mobile phones, laptops, computers can be used for carrying out crime and can further be helpful for investigating agencies to unveil the identity of the criminals involved in the crime. In pursuance to the influential role of technology and proliferation of laptops and the stocking up of data in digitized form, amendments were required to the laws inculcating the provisions of digital evidence.
There are many problems faced by the investigating agencies while proving the digital evidence to be of absolute relevance to the investigation. However, as far as search and seizure of electronic evidence are considered, it is more or less same as search and seizure of any evidence for that matter. Through this article, we aim to discuss the legal procedure required while search and seizure of electronic evidence. Furthermore, a research question is, can a police officer force a person to unlock their mobile phone by taking their biometrics? We shall try to answer this question and learn about can investigating authorities compel a person to give their biometrics and can that be constitutionally challenged? “This has been discussed in the article with reference to the recent privacy judgment”[1].
Legal Procedure for Search and Seizure of Electronic Evidence
The Section 93 of the CrPC, “mandates for a magistrate to issue a search warrant for any ‘document or thing’ also warrant for general search in the area only for the purpose of investigation”[2]. However, “Section 100 of the CrPC prerequisites search for a closed place, also it mandates a prior approved warrant for search and a witness at the searched premises”[3]. Other provisions include Sections 165 and 51 which provide for search without a warrant. “If any officer-in-charge feels that it would be time-consuming in acquiring a warrant and the evidence shall be lost then the officer can search the premises without a warrant”[4].
The “Information Technology Act, 2000 (IT Act)” was enacted by the Parliament for adding provisions for electronic evidence to the laws of India. There have been various amendments to the Indian Evidence Act in particular. “Section 3 of the Evidence Act talks about evidence and includes electronic evidence too”[5]. “Electronic record is a piece of documentary evidence”[6].
It was decided in the case of State of Maharashtra v Dr. Praful B. Desai that, “evidence recorded through video-conferencing is legal as interpreted under Section 273 of the CrPC”[7]. Supreme Court now also allows video conferencing as a medium for the examination of the witness. As per Section 273, “evidence has to be taken in the presence of accused”[8]. But, physical presence is not important, constructive presence would suffice.
“Admissibility of transcripts of interviews from news channels such as Aaj Tak, Zee News, Haryana News of Punjab Today channels as digital evidence was allowed by the Supreme Court in the case of Jagjit Singh v State of Haryana”[9].
Another example would be, in the case of Yusufalli Esmail Nagree v State of Maharashtra, the Supreme Court allowed the admission of tape-recorded conversation between the accused and a person who wanted to bribe him. “The court held that tape-records are a very accurate method of storing and reproducing sounds subsequently”[10].
Biometric Passwords: Constitutionally Valid?
Article 20(3) of the Indian Constitution prohibits that no accused can be forced to give evidence or to become a witness against himself. This right is sometimes described as anachronism[11] and sometimes it has been criticized for making the assumptions.[12] But considering the intent of the framers of the constitution and the interpretation of the judiciary it can be rightly said that rights given to the accused opposing self-incrimination are important to the Indian context.
Supreme Court in State Bombay v. Kathi Kalu Oghad,[13] established that the information only personal to the knowledge of the person is in the ambit of Article 20(3) and not any process of producing mechanical documents. They were in the favour that no accused can be compelled to give any incriminating evidence against him but they excluded finger impressions and handwriting samples because of their inherent character that cannot be changed and that evidence can only be used for corroboration. A mere sample of handwriting or finger impressions is not incriminatory in nature. It was held that giving fingerprints and handwriting sample is beyond the limits of ‘testimony’ which includes oral and written shreds of evidence. The reason behind this was simply because it is necessary in some cases to take physical impressions of an accused of the purpose of fruitful investigation.
Further, Supreme Court in Selvi v. State of Karnataka[14] established that ‘testimonial compulsion’ is prohibited by Article 20(3) but, it can be used for identification or corroboration of the evidence which are already known to the investigation authority.
The above judgments clearly show that the accused can be compelled to physical evidence only if they are taken for corroboration or to establish a link in the chain of evidence. Here the question arises whether the accused can be compelled to unlock his/her phone from fingerprints to collect the other pieces of evidence which can be present in the phone. This cannot be done because those fingerprints are not directly involved in the process of corroboration of the other evidence.
Recently the Supreme Court in CBI v UIDAI,[15] held that the accused cannot be compelled to share his/her fingerprints with any investigative authority because in Justice K.S. Puttaswamy v. Union of India[16] the SC laid down that informational privacy is something which is in the ambit of Right to Privacy which is also a Fundamental Right. Also Justice Chandrachud commented that “privacy postulates the reservation of a private space for the individual, described as the right to be let alone”.
United States of America (USA) Approach
The District Court of California held that passcodes, Fingerprints and Iris Scans Are equivalent to biometrics and the accused cannot be compelled to give the same for accessing the mobile phone. The US courts have laid down that an accused cannot be compelled to give access of his/her smartphone by unlocking the phone i.e. against the Fifth Amendment of the US Constitution.[17] This stands in consonance to the idea that a password is a testimonial in itself, as there is a chance that the disclosing of a password might reveal certain facts about the accused himself.
However, the courts have identified an exception to the Fifth Amendment i.e. The Doctrine of Forgone Conclusion[18]. This doctrine established that if the investigation authority previously has the information of any fact then they can compel the accused to give the passcodes and the same will not be protected under the Fifth Amendment. This doctrine gave unrestricted powers to the investigative authority as they can claim that they already have the knowledge of the evidence present in the phone and therefore the protection under the Fifth Amendment does not come into the picture.
Conclusion
To conclude, the laws of the CrPC and the Evidence Act are crystal clear and have laid down a specific procedure for the procurement of electronic evidence. The laws have been discussed in the article. However, as far as biometrics are concerned, it can be concluded that by relevant facts and judgment at hand, that police is not entitled to take the biometrics of the accused as it violates the right to privacy on two grounds; first, taking the biometrics without the concerned person’s consent thus violating the right to personal privacy, and secondly, the right to informational privacy. We also suggest that the approach followed by the USA should be adopted and followed in India as well.
[The co-authors are second-year students at National Law University, Odisha.]
[1] Justice K. S. Puttuswamy v Union of India, 2017 SCC 1.
[2] Code of Criminal Procedure 1973, s 93.
[3] The Code of Criminal Procedure 1973, s 100.
[4] The Code of Criminal Procedure 1973, s 165.
[5] The Indian Evidence Act 1872, s 3.
[6] Tejas D Karia, ‘Digital Evidence: An Indian Perspective’ (Digital Evidence and Electronic Signature Law Review, Vol 5) <https://core.ac.uk/download/pdf/20116845.pdf> accessed 30 April 2020.
[7] State of Maharashtra v Dr. Praful B. Desai [2003] 4 SCC 601.
[8] The Code of Criminal Procedure 1973, s 273.
[9] Jagjit Singh v State of Haryana [2006] 11 SCC 1.
[10] Yusufalli Esmail Nagree v State of Maharashtra [1967] SCR (3) 720.
[11] See Ronald Allen, Theorising about Self Incrimination, 30(3) Cardozo.L.Rev. 729, 731 (2008) (“Allen”); Walker, supra note 24, 4-5.
[12] David Dolinko, Is There a Rationale for the Privilege against Self Incrimination§, 33 UCLA L. REV. 1063 (1985-1986) (“Dolinko”).
[13] State of Bombay v Kathi Kalu Oghad, 1961 AIR 1808.
[14] Selvi v State of Karnataka (2010) 7 SCC 263.
[15] UIDAI v CBI (2017) 7 SCC 157.
[16] Justice K.S. Puttaswamy v. Union of India, 2017 SCC 1.
[17] Thomas Brewster, ‘Feds can’t force you to unlock your i-phone with finger or face, Judge rules’ (Forbes, 14 January 2019) <https://www.forbes.com/sites/thomasbrewster/2019/01/14/feds-cant-force-you-to-unlock-your-iphone-with-finger-or-face-judge-rules/#2bb8647142b7> accessed 30 April 2020
[18] Fisher v United States 425 U.S. 391 (1976).
The Criminal Law Blog 