Investigating officer leaking Private Data of the Accused

In K.S. Puttaswamy a nine judge bench of the Supreme Court held that right to privacy comes under Article 21 of the Indian constitution thereby making its derogation subject to the highest level of judicial scrutiny. However while making such an important judgement there were a few exceptions laid down as well one of which stated that information derived during the course of an investigation and the data retrieved during the process would not fall under the purview of violation of any fundamental right thereby specifying right to privacy. The exception continued with the proviso that to share the information seized off the case to a third party, a prior written permission of the court is essential. Justice Suraj Govindraj held that if any investigating officer is found sharing the information of a case he will be prosecuted for the same.  

A petition filed by Virendra Khanna who is an accused in the sandalwood drug case was heard by Justice Suraj Govindraj which challenged the order passed by the NDPS court directing the petitioner to cooperate and unlock the electronic devices seized by the police.

The petitioner argued that forcing the accused to unlock the device would be a violation of his fundamental right that is right to privacy. It further reiterated the law laid by the Maneka Gandhi case which stated that the law must be just, fair and reasonable. To this the prosecution submitted that if the petitioner had disclosed the passwords the application would not have had been filed and lastly they argued that it was not a violation of any of his rights.

The court then laid down a procedure to be followed for examining smart phones and emails which is as follows:

Firstly, a warrant must be issued. Once it is done the decision lies on the accused whether to disclose the password or not.

Secondly, a notice could also be issued by the investigating agency stating that if the passwords are not disclosed adverse inference could be arrived from the same to which the accused presents the passwords however if he still denies to furnish the password on an application by the prosecution the court can direct the service provider to unlock the smart phone. 

If the service provider also denies, the investigating agency has the power to hack their phones or email accounts. 

Lastly, if they are unable to hack and in the meanwhile the documents have been deleted or erased adverse inference can be freely drawn.

The court thereby instructed the prosecution to follow the procedure mentioned above. The court continued by stating that once the agency has access to the device it can go through any and all the documents, mail and data available on the phone or cloud connected to that electronic device. The court then stated that usage of such data would not amount to violation of right to privacy. It was also however made clear that providing the password would not amount to oral confession or written statement made by the accused thereby not amounting to testimonial compulsion. It would also not amount to self incrimination since the agency would have to prove the allegation made by them through material evidence.

The bench then set aside an order directing the accused to go through polygraph test and passed a judgement expressing that consent in writing of the accused against whom the test is being conducted is essential and that mere silence of the person would not amount to his consent. They further added that if the test was still conducted without the consent the results of the test would be considered as void and would not be considered by the court of law. 

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