Indian Courts and Self Incrimination Due to unlocking of Mobile Phone

The Hon’ble Karnataka High Court in its recent judgement, in Virendra Khanna vs State of Karnataka, has set aside an order passed by a Trial Court, which had directed an Individual to Cooperate with the police and provide them with a password or biometric access to unlock the device and access the Email of the individual. The present blog will take one through the highlights of this judgement to throw some light on the issue of self-incrimination through the unlocking of mobile devices, as opined by the Hon’ble Court.

Background of the Petition

This writ petition, which was decided by the Hon’ble high court, arose from an order passed by a Special Court created to handle the cases related to the NDPS Act(Narcotic Drugs and Psychotropic Substances Act) in Bangalore, against an Individual for a matter pertaining to the Investigation of a case filed against the Individual under NDPS Act.

The impugned orders of the Special Court

The court established for Handling the cases related to the NDPS Act had essentially passed two orders, which were contented to be prejudicial against the Petitioners. The court passed the following Orders.

1. In its order passed on 14.9.2020, the Court directed the Petitioner to Cooperate with the Investigating Agency in unlocking their Mobile Phone by providing with its password and also assist in providing access to their Email Id.
2. In its order passed on 23.9.2020, the court directed the individual to undergo a polygraph test to help the Authorities in Getting the password and unlocking the device,( as he was not providing with the password or the desired access) which was later reaffirmed in the order of 15.10.2020 as well, when the same was disputed by the Petitioner.

The issues before the court

 While the court went into great detail in laying down the issues before itself, the same can be summarised in the following issues and sub-issues to understand the gist of it

1. Whether a direction can be issued to the accused to furnish the password/passcode/biometric to open a smartphone or email account.
   1. Whether court can issue this order Suo-moto
   2. What recourse will an investigative officer have if such direction is issued and a password is not provided
   3. What things should be kept in consideration in issuing a search warrant for a mobile device.
   4. Whether providing such password/biometric amounts to self-incrimination and whether data collected after such access can ipso-facto prove the guilt
2. Whether providing access in such a manner violated the Right to privacy of the accused.

The decision of the court 

1. The court clarified to a great extent the position of unlocking mobile devices by the police officers in the first instance. The court held that a police officer can always ask an accused for unlocking their device or for providing access to such device, and it will be the choice of the accused to provide such access or not.
2. The court then further explained that a court cannot issue such an order Suo-moto, either, as it is not an investigative body and it is the job of the investigative authority to do the same.
3. The court further explained that in a situation where the Investigating officer is not provided with such access they can always approach the court to get a search warrant issued for a mobile device.
4. The court explained that in certain circumstances, for investigation, a search warrant can be issued by the court if an individual is not willing to share a document( under section 93 Cr.P.C.), or if the place is suspected of containing stolen property or other material which would be considered illegal if found in possession( section 94 Cr.P.C.), and also in the situations where a place is closed and one would require the assistance by the person in charge of the property or stays there to open it( section 100 Cr.P.C.). Furthermore, certain conditions will also have to be met in order to get such a search warrant issued. The court issuing such an order will have to
   1. indicate as to what smartphone, electronic equipment or email account is to be searched.
   2. The role of the same in the crime,
   3. the nature of search to be done,
   4. the place where the search has to be done as also specifically interdict the persons carrying out the search from disclosing the material and/or data procured during the course of the said search to a third party
5. The court further explained that there can be a search without a warrant, however, certain prerequisite conditions in such scenarios must be fulfilled for getting access to such a device. In a situation of an emergency where the data inside a device could be destroyed or the device could be destroyed or could be made unavailable, reaching the court could prove to be counterproductive, hence there is a requirement for such a provision. In such situations where time is of the essence, reasons must extensively be recorded in writing, for such search and such action to safeguard the interest of the person and organisation.
6. The court further explained that the data collected from the device after getting the access, would not itself prove the guilt of the accused and the data would have to be proved during the trial as done in any other matters. Merely providing access to the device doesn’t prove the guilt as the responsibility to prove the same is on the investigative agency and the prosecutor. The data which is acquired by such access is neither like an oral statement or a written statement hence the court compelling to do the same does not amount to testimonial compulsion and hence it is not a violation of a right against self-incrimination.
7. While answering the question of the Right to privacy the court took into consideration the Judgement laid down in the case of Justice K.S. Puttaswamy vs Union of India and explained that the use of personal data during the investigation will come under the exceptions laid down in the puttaswamy judgement, hence such an act is not a violation of the Right to Privacy. However, it is of paramount importance that the said investigative authority does not share this data with any third party and the responsibility of protecting the privacy of the individual would be on the investigating officer.