Article 20(3) of the Constitution of India states that "No person accused of any offence shall be compelled to be a witness against himself." This right against self-incrimination is an integral fundamental right available to all persons who are accused of an offence. This privilege applies to testimonial compulsion having the character of incriminating a person. It is a legal protection granted to an accused person against nefarious investigation practices and ensures that the prosecution discharges its burden of proving the offence as per the standard requirements, i.e., beyond reasonable doubt.

With the advent of technology, and the penetration of mobile phones, tablets, and laptops into the day-to-day life of an individual, a lot of sensitive and personal information/data is stored in these electronic devices. Recently, the Karnataka High Court in Virendra Khanna v. State of Karnataka and Another1 ("Virendra Khanna") and the Kerala High Court in P. Gopalakrishnan alias Dileep vs State of Kerala2 have held that data and information on an accused person's electronic device can be accessed by the prosecution and that the accused person shall have to provide the password/passcode/biometric access to unlock such electronic device. Both the Kerala High Court and the Karnataka High Court have held that production of the electronic device and password / passcodes / biometrics is not violative of Article 20(3) of the Constitution.

The authors here intend to analyse whether production of passwords / passcodes / biometrics amounts to 'testimonial compulsion' hence violating Article 20(3) of the Constitution. The authors will study the protection available under Article 20(3) of the Constitution and attempt to understand if such protection can be afforded to production of passwords / passcodes / biometrics.

THE RIGHT AGAINST SELF INCRIMINATION

Article 20(3) of the Constitution embodies the right against self-incrimination. It is much narrower than sections 24, 25, 26 of the Indian Evidence Act, 1872 which bars admissibility of confessions made to police / in police custody or under duress, coercion, threat. There are three requirements under Article 20(3):

  1. The person giving the testimony must be an accused at the time when such testimony is made.
  2. That testimony has a material bearing on the criminality of the maker.
  3. The maker was compelled to make this testimony.

The scope of Article 20(3) was first discussed in the case of M.P. Sharma v. Satish Chandra,3 ("Satish Chandra") where an 8-Judge Bench of the Supreme Court held that the scope of being a witness for the purpose of Article 20(3) was similar to 'furnishing evidence.' The Supreme Court gave a broad import to the scope of Article 20(3) and held that it covers oral evidence, production of documents and intelligible gestures also. Evidence can be furnished through lips, or by production of a document or a thing, or in any other mode and every positive volitional act which furnishes evidence is referred to as testimony. Article 20(3) deals with 'testimonial compulsion' which connotes coercion in procuring the positive volitional evidentiary acts. The Supreme Court in Satish Chandra also upheld the validity of statutory search and seizure powers of the State basing their reasoning upon the aspect that the Constitution of India does not recognize the fundamental right of privacy. The said aspect on recognition of privacy as a fundamental right has now been overruled by the Supreme Court in K.S. Puttaswamy vs Union of India.4 However, the ruling on validity of search and seizure is still valid.

The broad scope of Article 20(3) propounded in Satish Chandra created apprehensions that the scope has been too widely stated and required reconsideration. Hence, a larger bench of the Supreme Court was constituted to examine the scope of Article 20(3) in State of Bombay vs Kathi Kalu Oghad and Ors.5 ("Kathi Kalu Oghad").

THE KATHI KALU OGHAD JUDGMENT:

Kathi Kalu Oghad is a landmark judgment of 11-Judge Bench of the Supreme Court dealing with the scope and applicability of Article 20(3). In Kathi Kalu Oghad, questions arose as to whether an accused can be compelled to provide fingerprints, handwriting, signature specimens and if so, will that be a violation of Article 20(3).

The Supreme Court held that self-incrimination meant conveying information of incriminating nature based on the personal knowledge of the person giving the information which may be used against such person to hold him guilty. The testimony given by the accused should be such a statement which makes the case against the accused person at least probable on being considered by itself. The Supreme Court stated that 'compulsion' is not only restricted to a physical objective act but also to the state of mind of the person making the statement where the mind has been so conditioned by some extraneous process which renders the making of the statement involuntary. While analysing the scope of Article 20(3), the Court held that "To be a witness may be equivalent to 'furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification." The Court then went on to hold that an accused may be called upon to produce a document provided the said document does not convey or contain any statement of the accused based on his personal knowledge.

The Court applied the test of 'alterability' to not grant the protection of Article 20(3) to fingerprints or handwriting specimens as these features are intrinsic and cannot be altered as compared to personal knowledge. The furnishing of such fingerprints or handwriting specimens will not be in the nature of a personal testimony nor would be included within the expression 'to be a witness'. The minority also held that such fingerprints or handwriting specimen are only to be used for comparison or identification purposes and by itself are not incriminating. They looked at the usage of the information and reached the conclusion that fingerprints or writing specimens cannot be afforded protection under Article 20(3) as the accused person does not furnish evidence against himself.

Kathi Kalu Oghad while clarifying Satish Chandra makes distinction between testimonial and non-testimonial evidence. The former is where one is forced to reveal something that is within one's 'personal knowledge' such as thoughts, as opposed to something that exists independent of the individual such as fingerprints. The Supreme Court explains the ambiguity by saying that the phrase 'to give' in Article 20(3) refers only to instances within the accused's personal knowledge. Moreover, the Court held that the 'evidence' must directly incriminate. A fingerprint or a handwriting specimen would not directly incriminate the individual but would be used to compare / identify with something found on the crime scene.

THE VIRENDRA KHANNA JUDGMENT:

Most of the electronic devices used are protected either using password/passcode or biometrics such as fingerprint, facial scans, or retinal scans. Without having access to such password/passcode/biometric, one cannot access the contents of the electronic devices. It is in this context that the Karnataka High Court in Virendra Khanna passed a judgment to the effect that an accused can be directed by an investigating agency to provide the password/passcode/biometric and this would not be protected under Article 20(3) of the Constitution. The Karnataka High Court recognised that providing passwords, passcodes, biometrics is much more than giving specimen signatures or handwriting but, by relying on Kathi Kalu Oghad, state that providing the passwords or biometrics would not amount to testimonial compulsion as no testimony is being provided by the accused. The High Court stated that the data gathered from gaining accesses to any smart phone, electronic devices would have to be treated as any other document secured during the course of investigation and an analogy was drawn with securing a murder weapon – this by itself does not mean that the accused committed the murder / the data would not prove the guilt of the accused. Such data would have to be proved during the course of the trial. Any information gathered by the investigating officer has to be proved and established in a court of law. Mere presence of the document would not establish the guilt or innocence of the accused. The Court further goes on to state that there would be a chaotic situation if such data cannot be accessed as it would hinder the investigation process in various offences majorly cybercrimes or where DNA tests / blood tests are conducted amongst others.

Apart from that, the High Court further goes on to hold that not providing such information may lead to an adverse inference be drawn against the accused person. Moreover, the accused person should be given only one chance to provide the proper passcode, password, or biometric information. If the accused person does not cooperate and provide the password/biometric, the investigating agency may also avail the services of the specialised agency to crack open such passcodes or biometrics to access the electronic devices and such action/methodology cannot be contested by the accused.

PASSWORDS/PASSCODES/BIOMETRICS – PROTECTED OR NOT?

It is trite law that privacy of a person is a fundamental right which is protected under Article 21 of the Constitution. Passwords/passcodes/biometrics are essential and intrinsic characteristics of a human being and are protected under the fundamental right of privacy. In Kathi Kalu Oghad, the Supreme Court attempts to arbitrate between the two underlying values of privacy and security. The line drawn by the Court is at testimonial evidence and collection of physical evidence. The right of privacy extends till the point where the evidence sought to be accessed by the state is within an accused person's thoughts or personal knowledge. However, it does not extend to gathering of physical evidence even if it requires the active participation of the accused person. What the Supreme Court intends to protect is the individual's thoughts and not any physical unalterable characteristics or any physical objects in possession of the accused person.

While passwords and passcodes would come under the individual thoughts of the accused person, it may be argued that biometrics would not fall under the protection afforded under Article 20(3) of the Constitution by virtue of them being unalterable. By unlocking devices using such passwords/biometrics, the investigating agency would have access to all information/data on the device, some of which may be incriminating, and all of which are privileged information of the accused person. The Karnataka High Court in Virendra Khanna takes these arguments into consideration along with the Right of Privacy of the accused persons and holds that it is the duty of the investigating officer to ensure that such data and information gathered from the unlocked devices are kept confidential, safe and should not be disclosed to any third party except on an order by a court of law.

The authors respectfully disagree with the reasoning provided by the Karnataka High Court in Virendra Khanna and are of the opinion that all passwords, biometrics, passcodes are protected under Article 20(3) of the Constitution. Passwords are within the personal knowledge of the accused and are hence protected by the judgment in Kathi Kalu Oghad. The accused cannot be forced to divulge the password. Passwords are also like a fingerprint, or a DNA sample in that they themselves don't incriminate but they can be used to access information/documents which can otherwise be then used against the accused. Similarly, fingerprints are also used to access information or data which may be incriminatory in nature. In Kathi Kalu Oghad, fingerprints were excluded because they were only being used for comparison with other fingerprints found on the crime scene and not to access any information/document which would incriminate or have the tendency to incriminate the accused. The contents and documents in such electronic devices and the possibility of it containing incriminatory information is all personal knowledge within the mind of the accused. This personal knowledge is what is sought to be protected under Article 20(3) as held in Kathi Kalu Oghad. Such forceful disclosure of passwords, passcodes or biometric information would fall under the ambit of 'testimonial compulsion' thereby affording the protection under Article 20(3) of the Constitution.

While arguments of upholding the security of the state, efficient investigation and the underlying value of punishing the guilty could be made, it must be remembered that when state initiates prosecution of a person for commission of a crime, the proof of such commission of crime to hold the said person guilty must be procured independently and not by coercing or compelling the accused to provide assistance to gather such evidence/proof. The need for smooth and efficient investigation cannot in any sense override the fundamental rights against self-incrimination and right of privacy of the accused person.

The authors would buttress their argument through the judgment of the Supreme Court in Selvi vs State of Karnataka,6 ("Selvi") where the mental privacy of the accused person was taken into consideration and was held that such mental privacy is protected under Article 20(3) of the Constitution. In Selvi, the Supreme Court considered the aspects of administering narcoanalysis and brain mapping tests on the accused and stated that such tests invade the mental privacy of the accused and are used to determine the personal knowledge of the accused involuntarily. Hence, the accused is entitled to protection under Article 20(3) of the Constitution.

In both Kathi Kalu Oghad and Selvi, the Courts while interpreting Article 20(3) are not looking at only direct incriminatory evidence. In Selvi, the Court noted that while in narcoanalysis, the accused would involuntarily give oral statements which may be classified as evidence, the same is not true for polygraph or brain mapping tests. Polygraph tests involved drawing inferences from the physiological responses obtained from the accused's mind. This, the Supreme Court considered to invade the mental privacy of the accused. Further, if such physiological responses are considered by itself, it was not incriminatory unless inferences were drawn from these references. As personal knowledge was being conveyed from the inferences drawn out of the test results of the polygraph tests, the Court afforded the protection under Article 20(3).

In Kathi Kalu Oghad, the Court said that fingerprints may be collected. However, the specific facts in which Kathi Kalu Oghad decided that fingerprints may be collected is where it may be compared with evidence which has been found on the crime scene. The information of a password or a biometric will not directly be incriminatory but for all practical purposes gives access to information which may be incriminatory. To state that Article 20(3) only applies to direct incriminatory evidence and not indirect evidence would defeat the purpose of Article 20(3). Kathi Kalu Oghad should not be applied mechanically but contextually as has been done in Selvi. The test of alterability cannot stand true after 60 years of Kathi Kalu Oghad and the test under Article 20(3) should be whether the testimonial compulsion is with respect to personal knowledge of the accused and whether the information obtained directly or indirectly in incriminatory in nature.

CONCLUSION:

Article 20(3) attempts to strike a balance between the rights of the accused and rights of the state with respect to investigation. It focuses on the aspect of 'testimonial compulsion'. The Karnataka High Court and Kerala High Court have held that such protection under Article 20(3) is not applicable to passwords, passcodes, or biometrics. This, respectfully, in the authors opinion, is not in consonance with the judgments of the Supreme Court in Kathi Kalu Oghad and Selvi. Article 20(3) and the judgment in Kathi Kalu Oghad must be read considering the technological advancements made and the recognition of privacy as a fundamental right under the Constitution. What Article 20(3) intends to protect is the personal knowledge of the accused which may be obtained directly or indirectly from the accused in an involuntary manner. Whether passwords, passcodes or biometrics are protected under Article 20(3) would still need a more elaborative decision from the Supreme Court in light of their judgments in Kathi Kalu Oghad and Selvi. The authors here believe, in terms of the discussion above, that passwords, passcodes and biometrics should be afforded protection under Article 20(3) of the Constitution.

Footnotes

1. 2021 SCC OnLine Kar 5032

2. Judgment dated 29/01/2022 in Bail Appl. No. 248 of 2022 in Crime No. 6 of 2022 of Crime Branch Police Station, Ernakulam.

3. (1954) SCR 1077.

4. (2017) 10 SCC 1

5. AIR 1961 SC 1808

6. (2010) 7 SCC 263

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.