Self Incrimination in the Digital World

The legal system of any democracy works upon the separation of powers and transparency in the system. The Principle of Natural Justice, under the Indian constitution clearly highlights the following principle for a just and fair trial-

• Nemo judex in causa sua – No one should be made a judge in his own cause, and the rule against bias.
• Audi alteram partem – means to hear the other party, or no one should be condemned unheard. Thus solidifying the following spirits in the Indian legal system.
  • Adequate Notice
  • Fair hearing
  • No bias

All three of these concepts are grouped together as “The Right to a Fair Hearing” and the same is guaranteed and protected under article 14 and 21 of the Indian Constitution.

 

Legal Spectrum of self incrimination

It is vital to understand that a bleak difference lies between self incrimination and confession, any confession can be a self incriminating statement only when given in presence of a Metropolitan Magistrate or Judicial Magistrate with or without jurisdiction. In order to protect the rights of the accused, no one is guilty till proven guilty by due process of law and hence any person under the fear of apprehension or police may provide an self incriminating statement which might not be true or safeguarding the real accused, hence the confessions given in police custody are not admissible in the court of law and the same may be given under duress or intimidation. As the per the Indian legal standpoint the confession is governed by the following provisions of the Code of Criminal Procedure (CrPC).

Section 164-

Recording of confessions and statements—

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.

 

Section 281-

Record of examination of accused—

(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.

So, only a Magistrate can record a confession in the course of an investigation. And when the Magistrate is examining the person accused, he shall make a memorandum about the examination. This shall, then, be shown or read to the accused. And will be signed by the person accused and the Magistrate.

 

Digital Self Impersonification

The digital data is the most basic form of evidence and often it is seen that the phone and/or laptop of the accused has incriminating material pointing towards the criminal actions, but is it mandatory to provide the password to your phone or device in such cases ?

A Delhi court recently laid down that it is not mandatory for the accused to provide for the password to the I.O for accessing his/her device. It was held that it was in violation of article 20(3) of the Indian Constitution which reads as follows – No person accused of any offence shall be compelled to be a witness against himself, thus sharing a password for a device which may contain self incrimination evidence is also under the same ambit. Hence the sharing of password is equivalent to a brain mapping or a narco analysis test, Supreme Court declared such techniques unconstitutional as they intrude into the privacy of an individual to extract feelings and thoughts for self-condemnation and hence are only allowed when the individual consents to it, article 20(3) creates a zone of mental privacy which the State may not force to surrender to extract personal knowledge about a relevant fact.

The I.O has the option of getting authorised security professionals or firms to gain access to the device and its data in pursuance of the investigation of any case, however he cannot compel the accused to provide the same under any interrogation.

 

Conclusion

The recent advacements  in the digital space have made it essential for the laws also to be in congruence with the current time and it is clear how the cyber elements are making their way in the legal system in form of e-evidence or digital rights and hence it is essential to secure such actions and rights under the constitution to prevent any miscarriage of justice. The judgement brings a new tangent of digital rights as it consolidates the aspect of the constitution in regard to the current tech oriented issues and crimes, thus it is safe to say that the courts are on a look out and are fulfilling their responsibilities maintain balance between the provisions and the fundamental rights thus following the basic structure doctrine.

 

Author: Mr. Abhishek Singh, Research Associate, CyberPeace Foundation