(The authors, Arjun Maheshwari & Samarth Varshney are third year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow.)
A recent Delhi High Court case has ignited a debate on the seizure of digital devices and biometrics by investigating agencies under the guise of ‘investigating the offence,’ prompting a re-evaluation of their powers. Section 69 of the Information Technology (IT) Act has been a subject of concern due to its loose and expansive nature, granting the government seemingly unchecked powers. It empowers the government to intercept or monitor information. The information obtained through this process has the potential to convey the personal knowledge of the accused and make a case against them, invoking the protection of Article 20(3). This blog encapsulates the wide power given to Section 69 of the IT Act and how it violates Article 20(3) of the Constitution.
In recent years, the European Court of Human Rights (ECtHR) has found the privilege (Right against Self-Incrimination) to be one of the indispensable requirements for a fair trial under Article 6 of the European Convention on Human Rights (ECHR). [GR2] This was highlighted in the case of De Lege v Netherlands. But even after that, providing a compelling rationale for this privilege is quite challenging[GR3] . The difficulties are theoretical and practical, as the extent of this privilege is unclear.
Fundamental Conundrum in the Provision
The broad scope of the “investigation of any offence” clause in Section 69 of the IT Act grants investigating agencies extensive powers to assess evidence from individuals involved in any listed offence. While certain grounds are explicitly outlined in the said provision, the inclusion of this particular clause of ‘investigation of any offence’ makes the entire section somewhat redundant. Consequently, the section exemplifies a prime instance of loosely drafted legislation.
The expansive and loosely defined language employed in Section 69 of the IT Act must be interpreted as legally vague, granting non-restrictive powers to the Investigating Officer. This broad and unbridled power allows the investigating authorities to impel people to reveal their personal information without any safeguards. A parallel can be drawn to the case of Shreya Singhal v Union of India, where the Hon’ble Court characterized the IT Act, 2000, particularly Section 66A, as a poorly crafted legislation. The court, reading Section 66A as an ambiguous and vague power given to authorities, took corrective action by setting aside the alleged provision from the statutory framework. The precedent underscores the judiciary’s role in scrutinizing legislation with imprecise language and rectifying instances where fundamental rights are at risk due to loosely drafted legal provisions.
Debunking the struggle between statutes
Article 20(3) of the Constitution of India provides that “no person accused of an offence shall be compelled to be a witness against himself.” Moreover, information gathered from the devices will also amount to giving self-incriminating testimony, which again violates the said statute. The authors will use two landmark cases to establish the link between how passwords gathered from digital devices amount to self-incrimination.
In MP Chandra v. Satish Chandra, it was established that ‘to be a witness’ includes not only giving oral evidence but also producing documents or making intelligible gestures. Providing a password falls within the scope of ‘to be a witness’ as it involves furnishing evidence. In State of Bombay v. Kathi Kalu Oghad, the Supreme Court outlined that for Article 20(3) protection, the accused must have been compelled to convey personal knowledge about relevant facts, and such information must have incriminatory tendencies or make the case against the accused.
In Selvi v. State of Karnataka, the court held that procedures like the Narco Analysis/Lie Detection Test, which seeks personal knowledge without consent, attract the bar of Article 20(3). Similar logic applies to compelling a password through a private key, as it involves the import of personal knowledge. Thus, when the government, for the investigation purpose compels an individual, it compels the individual’s personal knowledge. Communicating a password to a law enforcement officer explicitlyrelates a factual assertion that is fundamentally a testimonial, communicative act and hence violates Article 20(3).
International Disparity
- Pleading the Fifth
The Fifth Amendment of the U.S. Constitution addresses the right against self-incrimination. The question of whether an accused can be forced to disclose the passwords of their electronic devices came before the Supreme Court of the United States in the case of Carpenter v. United States. In this case, the Court held that advancements in technology should not erode the constitutional rights of the people. Furthermore, the Court held that forcibly obtaining passwords for digital devices reveals information related to the mental processes of the accused, which would be a testimonial act and, hence, against the protection provided by the Fifth Amendment.
- Respite in Some?
The right against self-incrimination originated in England and Wales. In countries that base their laws on English common law, a body of law has developed to provide individuals with protection against self-incrimination.
The current statutory basis for the privilege against self-incrimination for defendants in criminal trials in England and Wales is found in the Criminal Evidence Act 1898, section 1(2) (as amended):
A person charged in criminal proceedings who is called a witness in the proceedings may be asked any question in cross-examination, even if it would tend to incriminate them in any offense with which they are charged in the proceedings.
The Criminal Justice and Public Order Act 1994, applicable to England and Wales, modified the right to silence. It allows the jury to draw inferences if a suspect refuses to explain something during police questioning but later provides an explanation. In such cases, the jury may infer that the explanation was fabricated later, though they are not required to do so.
- The Other Part of the UK
In Scotland, criminal and civil law, both common and statute, have their own separate origins and operations distinct from those in England and Wales, getting recognition from the Criminal Justice (Scotland) Act, 2016. Here, the right to remain silent is preserved, and juries have limited power to draw inferences. On January 25, 2018, Scotland introduced changes to how people are detained by the police, affecting only those arrested after this date. If you are arrested, you have the ‘right to remain silent’ and don’t have to answer police questions about the crime you’re accused of. However, you are required to provide basic information such as your name, date of birth, address, and nationality.
When it comes to digital evidence, both jurisdictions face challenges. In England and Wales, while individuals can be compelled to provide passwords or unlock devices that could incriminate them, failure to comply with police requests can lead to negative inferences or additional legal consequences. In Scotland, different principles apply: detainees have the right to remain silent and cannot be forced to provide passwords or access to devices, but they must still comply with requests for basic personal information. The balance in both jurisdictions seeks to protect individual rights while addressing the evolving complexities of digital evidence in criminal investigations.
Conclusion
Therefore, based on the above interpretation of the statutes and cases, it is concluded that unlocking the accused’s digital devices should be protected. This is because it is considered testimonial and has the potential to disclose information that could be used by investigating agencies against the accused. Such a practice itself violates the spirit of Article 20(3).
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