Using a rights-based methodology, the Delhi High Court decided that a defendant cannot be made to reveal passwords included in digital evidence, but is this consistent with other high court rulings?
TBN 18/02/24: The Delhi High Court has made a progressive ruling, holding that a defendant cannot be forced to reveal passwords related to digital evidence while their case is still ongoing.
This ruling in Sanket Bhadresh Modi versus Central Bureau of Investigation & Anr. supports a proper legal stance that defends an individual’s constitutional rights as well as their human rights, particularly their right to privacy.
The verdict stands in contrast to the Karnataka High Court’s decision in Virendra Khanna versus State of Karnataka, where the court erred in its findings and misrepresented the law by misinterpreting the Kathi Kalu Oghad case.
Additionally, it went against the decision made by the Kerala High Court in P. Gopalkrishnan versus State of Kerala, wherein the court determined that access to the accused person’s mobile phone data by the prosecution does not infringe upon the constitutional rights outlined in Article 20(3) of the Indian Constitution.
Remarkably, a Delhi sessions court has already rendered an opposite decision subsequent to the Karnataka High Court’s verdict.
It’s interesting to note that a number of petitions asking the Supreme Court to establish rules for the seizure of electronic devices are currently pending.
Both of the aforementioned rights—which are also essential human rights—are violated if the accused person is forced to divulge the password on their electronic devices.
When deciding on the aforementioned batch of petitions, it will be fascinating to observe how the Supreme Court handles this trio of rulings from the lower courts, particularly those that address related issues.
The legal path of an accused person’s rights
The Indian Constitution’s Article 20(3) guarantees the right against self-incrimination, whereas Article 21 guarantees the right to privacy.
Both of the aforementioned rights—which are also essential human rights—are violated if the accused person is forced to divulge the password on their electronic devices.
In Selvi & Ors. versus State of Karnataka, the Supreme Court ruled that subjecting the accused to coercive techniques like narco-analysis and lie detector tests is a violation of their right against self-incrimination and amounts to testimonial compulsion.
Furthermore, it violates Article 21 because it gives the agency total access to the accused person’s private life as soon as it obtains possession of a device.
It’s an intriguing thought to consider if unfettered access to an accused person’s device can constitute a legitimate exception to the right to privacy, but Abhinav Sekhri contends that it cannot. As such, it clearly infringes upon the accused’s right to privacy.
In addition to the protection provided by Section 161(2) of the Code of Criminal Procedure (CrPC), individuals accused of self-incrimination are also protected by Article 14(3)(g) of the International Covenant on Civil and Political Rights.
