Self Incrimination: Can The Accused Be Compelled To Reveal Their Mobile Passwords?

Mobile Phones have not only become a part of our lives, but they have now become a part of the human mind. Our lives have become incomplete without mobile phones. All the things we do such as the places we visit, the people we talk to, the food we eat, is known by our mobile phones. Our mobile phones know more about us than our friends and family. Everything which is done using a mobile phone leaves digital footprints everywhere.

If an accused in a criminal matter is asked for his password, fingerprint scan or face- scan for the purpose of unlocking their mobile phone leaves us with the following questions-

-Can the accused be compelled to do so?

-Does this infringe the right to privacy?

-Does it amount to being a witness against oneself?

According to Article 20(3) of the Constitution of India, “No person accused in an offence shall be compelled to be a witness against himself.”

Self- Incrimination means communication of information depending upon the personal knowledge of the accused and it cannot merely include the traditional process of producing documents in the Court.

Directing an accused to submit his handwriting sample, password, fingerprints, face-scan in order to unlock a mobile phone was said to be not in violation of Article 20(3) by the Supreme Court of India in the case of State of Bombay vs Kathi Kalu Oghad.

The Court held that testimonial evidence means “to be a witness” and being a witness “may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense so as to include giving of thumb impressions or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for the purpose of identification.”

Thus it is sufficient to say that an accused cannot refuse to unlock a phone protected by a fingerprint, or face or iris scan as none of them are testimonial in nature.

However, this fact cannot be denied that revealing the password, or fingerprint or face/iris scan for that purpose, can lead to a possibility of Self- Incrimination.

The above information is to impart awareness and no part of this should be construed as providing legal advice for any purpose.

ABHINAV KUMAR

www.nyayoptions.com