A Delhi court has held that a persons accused in criminal cases cannot be forced to provide the password of their electronic device to an investigating agency, Bar and Bench reported on Wednesday.
Special Central Bureau of Investigation judge Naresh Kumar Laka said that forcing an accused person to do so would contravene Article 20(3) of the Constitution, which deals with the right against self-incrimination.
The judgement is not binding on other courts, but it may hold persuasive value in other similar cases.
The CBI court passed the judgement on a plea filed by the CBI seeking directions to an accused person, Mahesh Kumar Sharma, to provide the user ID and password of his computer.
The judge said that while an investigating agency cannot force accused persons to provide passwords, an investigating officer can access data from a computer “with the help of specialised agency or person at the risk of accused for loss of data”, The Indian Express reported.
Judge Laka said that although a Karnataka High Court judgement had earlier held that passwords and biometrics are the same, the recently enacted Criminal Procedure (Identification) Act called for different approaches towards passwords and biometrics.
“In other words, said biometrics can be taken from an accused and used for opening of mobile phone/computer system/email/software applications, etc. by the police agency, wherever such need arises for a fair investigation...” the court said.
The judge, however, said that this would only apply if the accused person is a convict, arrested person or detainee.
The court said that the computer may contain private data of the accused person and revealing it to the investigation agency could intefere with his right to privacy. The password is not by itself a self-incriminating testimony, the judge added, but an investigating officer would procure the password to access the accused person’s data.
The court noted that unlike in the United States, in India, evidence obtained through illegal means can be used in certain circumstances. It held that due to this, there was a risk of an accused person’s right against self-incrimination being jeopardised.
The judge said that if an accused person refuses to give information that could be self-incriminating, no adverse inference should be drawn against the person.
“Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence,” the court said.
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