Police and investigative agencies currently claim unfettered access to your WhatsApp, private emails or chats with your doctor, lawyer or psychologist. Can they force you to unlock your phone and disclose passwords? In the absence of clear laws, they do what they wish
New Delhi: Actor Deepika Padukone. Website Newsclick. Lawyer Mehmood Pracha. The common thread to all these is that police and other investigative agencies have, in the absence of clear laws that dictate the collection of electronic evidence, done pretty much what they wanted in harvesting, releasing and using such material.
While no stay was later granted against a police raid at Pracha’s office, the Court questioned how the prosecution proposed to retrieve certain “target data” without interfering with other privileged data stored in a hard disk.
The reliance on digital evidence by law enforcement and courts has become inevitable because of frequent and compulsive use of technology in daily life. However, it has become increasingly clear that investigating agencies, magistrates and lawyers largely lack specialised knowledge to deal with the unique challenges posed by electronic evidence.
The rules regarding search, seizure and admissibility of electronic evidence fail to address the distinct, sensitive and vulnerable nature of digital evidence, as opposed to any other evidence produced at trial. The lack of a legal framework around admissibility of such evidence is likely to have a significant impact on prosecution outcomes and may, in some cases, even lead to mistrials.
Despite growing concerns around illegal searches, the Uttar Pradesh government on 26 June, 2020 announced it would set up a special force that can search suspects without a warrant. On 24 March, 2021, the Bihar Legislative Council passed the Bihar Special Armed Police Bill, 2021, allowing police to search and arrest without a warrant.
The Unfettered Power To Search
Chapter VII of the Code of Criminal Procedure (CrPC), 1973, lays down the provisions of search and seizure by investigating agencies. Typically, prior sanction of a court in the form of a warrant is required before a search.
However, section 165 of the CrPC says that where an immediate search is necessary to prevent loss or fabrication of relevant evidence in a case, the police do not need a warrant, but must record their reasons in writing.
Although section 165 is an exception to the general requirement of obtaining a warrant prior to search, recent cases indicate that this wide power is often used arbitrarily to circumvent due process of the law.
In May 2018, as many as 10 officers of Ahmednagar police entered the house of a suspect, Dynaneshwar Todmal, without a search warrant, at night when Todmal was sleeping with his family, which included two women and children. In this case, the court not only found the police search illegal but also granted Todmal compensation because his right to privacy under Article 21 of the Constitution was violated.
In another recent incident on 12 February 2021, two persons claiming to be Delhi Police personnel seized, without a search warrant, a computer hard disk and other items from the house of environmental activist Shantanu Muluk, a suspect in what has come to be known as "toolkit" case, involving an accusation made by the police that the editing of a google document about protest methods was somehow illegal.
Ambiguous Search Warrants, Illegally Acquired Evidence
Another significant impediment is posed by a court’s ability to issue warrants lacking particularity. Issuing vague warrants without specifically mentioning what is to be searched and where, provides law enforcement unimpeded power to conduct general or fishing searches of any place.
Although courts are empowered, where they think fit, to issue warrants specifying the particular place or part to which the search or inspection shall extend, this power is discretionary, not mandatory.
This discretion to issue specific search warrants is muted because of the large volume of cases and India’s judicial backlog. Since magistrates cannot afford to spend a substantial amount of time on specific facts of every case, search warrants are typically bereft of detail about the scope of a search.
Another challenge is that evidence acquired without following the procedural requirements of search is readily admitted by courts. In the absence of a specific provision which bars the admissibility of such evidence, Indian courts have held (here, here and here) that the discarding of due process is no more than an irregularity. In other words, evidence recovered by illegal means is not thrown out even if it lacks credibility.
Admissibility of illegitimately procured evidence in India is on the extreme end of the spectrum as compared to most other countries. Indian courts have continued to hold this precarious position, even though the British, from whom we inherited the Indian Evidence Act, 1872, have provisions to exclude unlawfully-obtained evidence under the Police and Criminal Evidence Act, 1984. The Indian position on such evidence also starkly contrasts with provisions in the US Constitution, the source and inspiration of our fundamental rights.
To a large extent, the legality of convictions based on illegal evidence remains unaffected by defects in search.
For example, in R.M. Malkani vs State of Maharashtra, 1973, the court admitted evidence stolen by the police. The Supreme Court rejected the appellant’s argument that it was illegal to tamper with a telephone communication and held that even if there was illegality involved, the evidence was admissible.
At best, the courts are of the opinion that non-compliance of statutory safeguards may call for strictures against the police, and could also affect the weight of the evidence. However, evidence obtained illegally is not inadmissible per se.
These issues are amplified in cases of digital evidence.
Digital Evidence Vs. Ordinary Physical Evidence
Existing law with regards to search is premised on a single-step process: assuming that a warrant is issued or if the requirement is exempted, police enter a place to be searched and retrieve property sought.
However, the CrCP disregards the fact that digital records tend to involve a dual process: the police conduct a physical search to seize digital hardware; and then electronically search for data from the seized device.
There is a glaring lack of guidelines in searching for digital evidence.
What record-keeping requirements apply to the electronic search, and when must seized digital equipment be returned? What are the timelines to be followed by law enforcement during electronic search? Is the timing governed by the same rules as physical searches? Where warrants are issued, what should be searched: the location of the electronic device, the device itself or the location where the electronic search will occur?
Answers to these questions cannot be found in the CrPC, the Information Technology Act, 2000, or the Indian Evidence Act, 1972.
Seize All You Can? The Bhima-Koregaon Case
Recent cases indicate that investigating agencies often search and seize records without demonstrating probable cause, necessity or proportionality.
In one 2019 hearing of the Bhima Koregaon case, the Pune police read out before the court, the titles of digital evidence allegedly recovered from the house of accused Vernon Gonsalves. These included Rajya Daman Virodhi (Against State Repression), a drama by a music group called Kabir Kala Manch; Jai Bhima Comrade, a national award-winning film by Anand Patwardhan; and CD titled Marxist Archives. Some books, such as War and Peace, Understanding Maoists and RCP Review were also allegedly seized.
The Pune police have, so far, failed to provide any details about how the seized CDs or books link Gonsalves to the case. In August 2019, Justice Sarang Kotwal of the Bombay High Court noted that merely alleging that the CDs and books have “objectionable” titles was not enough.
Justice Kotwal asked the police, “Have you tested these CDs? What if they turn out to be blank inside? If you (prosecution) do not place on record the content and details of such material, the court will have to ignore them".
Justice Kotwal also asked Gonsalves why he had “such” material, remarking that “the CD ‘Rajya Daman Virodhi’ itself suggests it has something against the state”. The judge’s insinuation begs the question: does mere possession of CDs with “anti-state” titles amount to incriminating evidence, even though its contents are yet to be disclosed?
In the same case, there have been allegations of blatant disregard of due process during search and seizure. The accused in the case have claimed that the Pune police had not provided them with “hash values” of the devices seized from them.
A hash value is a unique numerical value, equivalent to fingerprints for computer files, which investigating agencies must provide when seizing an electronic device. This is done to ensure integrity of the device. If any changes are made to the device subsequently, the hash value changes, which indicates that the device has been breached.
The Bhima-Koregaon case raises another pertinent concern around limitations on what and how much can be seized during search. Sagar Abraham Gonsalves, the son of accused Vernon Gonsalves, claimed that at the time of the search, the police confiscated spare phones, laptops and CDs and refused to provide cloned copies.
According to a January 2021 Newslaundry report, the police even seized a laptop of the niece of one accused, Surendra Gadling, containing her college engineering project and personal DVDs of wedding and birthday parties.
Section 65B(2) of the Evidence Act provides that for any electronic evidence to be admissible, (i) the computer that produced the electronic must have been in regular use at the time of the creation of the electronic record, (ii) the kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer, and (iii) the computer should have been operating properly.
In view of these conditions, is it logical to allow a blanket confiscation of all and any electronic devices in the vicinity of a person? If old and spare digital devices are seized at random, it becomes all the more difficult to prove whether the hardware acquired was in possession of the accused. Regular use and proper operation is harder still to establish conclusively.
A startling revelation in the Bhima-Koregaon case revolves around a report collated by Arsenal Consulting, a prominent US digital forensics firm. The report provides a detailed account of how primary evidence against the accused, which included at least 10 incriminating letters, was planted on accused Rona Wilson’s laptop using malware, a type of malicious software intentionally designed to gain unauthorised access to a computer. The police released this alleged “evidence” to the media before it was provided to the court.
The National Investigation Agency (NIA) has rejected all claims made by the accused, including the report which Mark Spencer, the CEO of Arsenal Consulting, characterized as “one of the most serious cases of evidence tampering” ever encountered by his team. The NIA maintains that the digital extracts submitted in court along with the charge sheet were duly examined at the Regional Forensic Science Laboratory, Pune.
Activist and accused in the case, Rona Wilson moved the Bombay HC on 10 February 2021, alleging evidence tampering. The court must now decide whether the report of a local forensic laboratory is more reliable than one from a reputed foreign forensics company. This will be a ground-breaking finding that will set the tone for other cases involving foreign forensics experts.
The Bhima-Koregaon case has not only exposed the gaps in the procedure, or lack of them, related to search and seizure of digital devices, but it also raises concerns of evidence tampering in other cases. The Arsenal Consulting report allegedly found that accused in “other high-profile Indian cases” were also targeted.
Serious Violation Of Constitutional Rights
Imagine waking up to your WhatsApp chats being leaked and aired on primetime by TV news channels; or that the police have seized all your private communications with your doctor, lawyer or psychologist. Imagine if you are compelled to unlock your phone or disclose passwords because the police have a hunch that your gadgets might contain something incriminating.
These are all real-life, recent events.
Recently, private WhatsApp chats of actress Deepika Padukone were made public by television news channels who declared a verdict even before trial began.
Before any information could be presented to the court, the country was privy to Padukone’s conversations years prior to the incident under investigation, with third-persons’ information accessed without their consent. This is a multi-layered invasion of privacy, a serious infringement of the constitutionally guaranteed right to life under Article 21 of the Constitution.
As a United States court put it in August 2019, smartphones contain the "combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner's life".
Such intrusive searches breach privacy and go against one’s right against self-incrimination. Giving due credence to Article 20 (3) of the Constitution, courts in State of Bombay vs Kathi Kalu Oghad, 1961, and Selvi vs State of Karnataka, 2010, held that one has a right to refuse to unlock one’s phone for investigating authorities, if he or she believes that access to sensitive material is likely to be self-incriminating.
Enforcement Directorate searches at the Delhi office of NewsClick, a news website, allegedly lasted 113 hours and digital equipment vital to their functioning was seized. The duty to protect one’s sources is integral to journalistic ethics. With widespread seizures of all electronic equipment, how does one reconcile this right and duty with the state’s power to take coercive action?
Like the journalists at NewsClick, lawyers have found themselves caught in the crossfire between their professional ethics and rights and their obligation to cooperate in an ongoing investigation.
On 24 December 2020, the Delhi police searched the office and residence of lawyer Mehmood Pracha, who is defending several accused in the riots that swept northeast Delhi in February 2020. Former Bombay High Court judge B G Kolse Patil, alleged that at least 200 police personnel looked for one alleged email for more than 15 hours. Privileged data in relation to other clients and cases involving Delhi Police were also reportedly seized.
Blanket and arbitrary searches without any checks infringe our constitutionally guaranteed rights. The pervasive integration of technology in our lives cannot mean that people have fewer personal liberties. In acknowledgment of the need to protect citizens from illegal searches, the Karnataka High Court on 13 March 2021, as we said, drafted minimum guidelines to be followed by investigating officers for search, seizure and preservation of digital evidence.
While the guidelines issued by the Karnataka High Court are a step in the right direction, India is far from a legal framework that addresses the peculiar, fragile and volatile nature of electronic evidence.
(Mani Chander is a lawyer based in New Delhi.)