As cyber space evolves rapidly, digital personal data is everywhere. It becomes essential, particularly when accessing it as digital evidence. It pits the right to privacy against the law enforcement agencies’ primary objective to investigate criminal offences. As Justice BN Srikrishna aptly articulates, the concept of privacy empowers individuals to retain control over their data. This control becomes increasingly crucial as our reliance on digital platforms and devices grows.

What is Privacy?

In the Indian context, the landmark Puttaswamy judgement affirmed the right to privacy as a fundamental right under the Indian Constitution. The Supreme Court recognised the intrinsic importance of individual privacy in the digital age. It set the stage for a nuanced examination of how this right intersects with the collection and use of digital evidence by law enforcement agencies. This intersection raises complex questions and disagreements. How can we uphold the fundamental right to privacy while ensuring that law enforcement agencies have the tools necessary to combat crimes in the digital age? This article seeks to answer this question while examining if there is a balance or rather misbalance of individuals’ rights and the almighty state’s power.

Police Authority and Digital Evidence

The nature of crime has evolved with the passage of time and advancements in the technological landscape. With that, there is no denying that the mode and nature of evidence have changed. The digital nature of evidence has led to a whole new branch of evidence known as digital evidence. It encompasses a wide array of electronic information instrumental to legal proceedings. It includes data stored on electronic devices such as computers, smartphones, servers, etc. Examples include emails, text messages, social media posts, GPS location records, documents, and call detail records, among others.

In India, the Code of Criminal Procedure, 1973 (“CrPC”) and the Indian Evidence Act, 1872 (“Evidence Act”) outline the legal framework for the investigation and collection of evidence by the police. These two laws primarily serve as a guide for police to access digital data through search warrants. Section 93 of CrPC empowers a magistrate to issue warrants for the search and seizure of documents or things. Under this provision, a law enforcement agency can conduct searches for digital evidence under judicial oversight.

In Ritika Sharma v. State (NCT of Delhi), the Delhi High Court addressed the issue of the admissibility of digital evidence collected by the police in a criminal case. This case outlined the instrumental role digital evidence can play in legal proceedings. However, the court also clarified that the admissibility is subject to the integrity of the evidence collection process.

The Right to Privacy in the Digital Age

The right to privacy has come a long way in the rapidly evolving digital landscape! Specifically, in the Indian context, it has seen the journey from being non-existent to becoming a fundamental right. Undoubtedly, it is a known fact that no fundamental right is absolute. The same is the case for the right to privacy. Like other fundamental rights, it is subject to reasonable restrictions imposed by the state. However, recognising the right to privacy as a fundamental right introduced a new dimension to the admissibility of illegally obtained evidence. Under Article 20(3), there is a constitutional bar on self-incrimination. Here, individuals accused of crimes have the right not to be compelled to be witnesses against themselves. This right against self-incrimination safeguards individuals from being forced to provide evidence that could incriminate them in criminal proceedings.

A law enforcement agency compelling individuals to unlock their phones or laptops directly impacts the right to privacy. Several rulings now state that law enforcement agencies cannot compel individuals to provide passwords for their devices. This applies even if the investigating agency has seized the device. However, law enforcement agencies are open to using available tools and techniques to access the data stored on the device.

Addressing Existing Challenges: A Need for Balance

Law enforcement authorities have a simple and straightforward argument. Accessing electronic devices involved in crimes or containing vital evidence overrides privacy claims. On the other hand, the landmark Puttaswamy judgement recognising privacy as a fundamental right has shaped the discourse around digital surveillance. To this mix, Article 20(3) also deserves a mention as the right against self-incrimination.

The challenge lies in striking a balance that respects law enforcement imperatives and privacy rights. Robust legal frameworks, adherence to due process, and judicial oversight are critical in safeguarding individual liberties amid evolving digital technologies and investigative practices. Various court decisions have undeniably addressed this delicate balance between police authority and the right to privacy.

Recent Incidents

The notable NewsClick case is a classic example in this context. The Delhi Police raided the premises of Prabir Purkayastha, the founder, and seized various digital materials during the search. Kapil Sibal, Senior Advocate, represented the petitioner in this case and highlighted the importance of due process and lawful procedures in handling digital evidence. His arguments emphasised the need to respect privacy rights in criminal investigations.

Similarly, in the most recent Delhi Liquor Policy Scam case, the Directorate of Enforcement (ED) confiscated four mobile phones and other electronic devices from the Delhi CM’s house. While it did not receive any positive response from Apple for assistance in obtaining passwords for these devices, this action raised a few eyebrows.

Important Judicial Pronouncements

While we debate this issue, Section 132 of the Income-tax Act, 1961 clearly requires an individual to facilitate the inspection of books of accounts or documents stored electronically. While the provision does not specify the word “password,” there are a couple of judicial pronouncements on this issue. In SR Batliboi v. Department of Income Tax, the Delhi High Court refused to pass an order granting absolute access to the assessee’s employee’s laptops. The court noted that the petitioner was ready to cooperate; hence, the Revenue should only inspect files belonging to the particular client of the assessee in question.

In Virendra Khanna v. State of Karnataka, the Special Trial Court ordered the accused to disclose the passwords and undertake the polygraph test on the prosecution’s application. The Karnataka High Court quashed the impugned orders while providing detailed guidelines on this issue. The court’s opinion and decision on this issue are available here. In CBI v. Mahesh Kumar Sharma, the Special Court refused the agency’s application to direct the accused to disclose his passwords. However, the court mentioned that the agency can access the computer’s data with the help of a specialised agency/expert at the risk of the accused for the loss of data, if any.

Conclusion

This is one of those issues with a complex interplay between law enforcement and privacy rights. Upholding both rights is paramount to ensuring a just and accountable society. Privacy is not merely a legal construct but a cornerstone of individual freedom and dignity. Upholding privacy rights is essential for maintaining public trust, protecting civil liberties, and fostering a culture of accountability among law enforcement agencies. The famous Abraham Lincoln quote, “Government of the people, by the people, for the people, shall not perish from the Earth”, should stand true in its essence even today.

The process by which law enforcement agencies access and handle digital evidence is crucial in balancing investigative needs with citizens’ fundamental rights. A well-defined framework on this issue will be a step in the right direction towards achieving this balance. The guidelines given by the Karnataka High Court are a good starting point; however, the guidelines must be binding and followed by all agencies in the country.