Passwords as evidence : Right against self-incrimination in Digital world

As privacy is primordial in an increasingly connected and invasive digital world, the right to protect oneself from self-incrimination of digital data is equally important. Electronic records are increasingly becoming part of evidence, but where to draw the line ?

Recently, CBI Court in Delhi held that an accused cannot be forced to provide password of his electronic gadget, after they are seized by an investigating agency. However agency can take help of specialised person or agency to crack the password and access information. It was held that asking accused to provide password amounts to compelling him to give self-infringing testimony.

The Court held in Central Bureau of Investigation vs. Mahesh Kumar and others that “However, the said provisions like any other statutory legislation or delegated laws/rules are always subject to Constitutional law especially the Fundamental Rights as given, inter alia, in Article 20(3) of the Constitution of India which gives protection to the persons who are accused of committing criminal offences to maintain silence when they are compelled to give self-incriminating testimony,”

"The fact of first category may be based on oral or written statement of an accused but they can still be compelled for the purpose of identification or comparison with facts and materials which are already in the possession of the investigating agency. The Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence”

This is similar to 5th Amendment in USA where police cannot demand password. Pennsylvania Supreme Court ruled that compelling a password from a suspect is a violation of the Fifth Amendment, since it is a constitutional protection which gives a right to remain silent, which includes the right to not turn over information that could incriminate them in a crime.

However, in several cases it has been held that biometrics are not covered under 5th amendment, so unlocking phone by face ID or finger scan, will not be same as telling password. The grey areas of law will be more defined with time, for now privacy stays compromised and self-incriminatory.

 Pic: A not so cold December day in the corridor at the Hon’ble Supreme Court, acclimatising to changes colder weather and a sustainable paperless world.