Law in the Internet Society
-- NinniSusanThomas The Right Against Self-Incrimination in the Digital Age

Mobile phones almost being an extension of our lives, with it tracking every conversation, expenditure, location, can act as the pivotal part if one was to be involved in a criminal investigation. The question of whether a person can be forced to hand over passcodes of their electronic devices that could lead to self-incriminating information has been discussed in recent times in both the United States and India. It raises very interesting questions surrounding the right against self-incrimination and the right to privacy.

Current scenario in the United States

In the United States, relying on the foregone conclusion doctrine (Fisher v. United States), it may be argued that as the contents of the phones of accused would already be known to the investigating authorities, forcing them to give passwords of their phones cannot be seen as a violation of their right against self-incrimination. This question of law, wherein the extension of the right under the Fifth Amendment to not provide a phone’s password is pending in an appeal to the Supreme Court in Andrews v. New Jersey. There have been divergent views in multiple State Supreme Courts as well.

Context in India and current situation

Article 20(3) of the Constitution of India guarantees the right against self-incrimination. Over the years, the Indian Supreme Court’s judgments have provided different - and even conflicting - rationales for this right. These justifications can be broadly grouped into two categories: crime-control justifications and due process justifications. Crime-control justifications view the right against self-incrimination as instrumental towards the criminal law’s goal of uncovering the truth and punishing the guilty. According to this justification, forcing people to incriminate themselves will, more often than not, yield false testimony and lead criminal investigations astray. Due process justifications, on the other hand, view the right against self-incrimination to be part of a broader panoply of criminal procedure safeguards aimed at preserving the dignity of the individual, and maintaining a balance of power between the individual and the State.

The Indian Supreme Court has gone back and forth between these two justifications. The exact text of Article 20(3) reads: “no person accused of an offence shall be compelled to be a witness against himself.” In Kathi Kalu Oghad, the Supreme Court considered the question of whether compulsory taking of fingerprints and handwriting samples were hit by the bar against self-incrimination. The Court held that they were not. What weighed with the Court, among other things, was that fingerprints (and, to a lesser extent, handwriting samples) could not be altered by an individual at will. Consequently, whether or not these samples were coerced from an individual, their intrinsic qualities would remain unchanged. It can be clearly seen that this reasoning fits well within the crime-control justification: linking the right against self-incrimination to an individual’s ability (or lack thereof) to alter a piece of evidence directly flows from a primary concern about the goal of criminal law being to determine truth and punish the guilty.

On the other hand, in Selvi v State, the Supreme Court held that the compulsory taking of a lie-detector test, brain mapping (HEAP) test, and narco-analysis - all interrogation techniques - were all unconstitutional. In the course of its analysis, the Court did not ask about the alterability or mutability of the evidence (a brain scan, for example, would fall well within the unalterability paradigm), but focused instead on the right to mental privacy, and read Article 20(3) along with Article 21 (right to life and personal liberty) of the Indian Constitution.

There is thus a tension in Indian jurisprudence between the crime control and due process justifications of the right against self-incrimination. Whether the right, thus, protects data recovered from an individual’s personal mobile phone, or other device, in the course of investigation, depends on which of these justifications is held to be the correct understanding of Article 20(3). Under the due process justification, a person should be entitled to refuse to provide their password to the police during the investigation. Under the crime control justification, on the other hand, this refusal will be more difficult to defend.


The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions.



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r2 - 18 Dec 2021 - 17:38:10 - NinniSusanThomas
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