‘Deep Disquiet About Planting of Digital Evidence’

We are a group of former civil servants of the All India and Central Services who have worked for decades with the Central and State Governments. As a group, we have no affiliation with any political party but are committed to the values and principles enshrined in the Constitution of India.

1. Justice is the most fundamental of constitutional principles and criminal justice is the foundation of law and order in a civilized society. Fair and impartial investigation of crimes is at the root of criminal justice. The reports that the police and other investigative agencies may have violated constitutional guarantees and judicial pronouncements in the practices adopted in search and seizure operations, as well as the possibility that they may have been party to planting incriminating material in personal digital devices and harvesting evidence therefrom, have caused us grave concern.

2. Recent reports of false evidence being planted remotely in the personal computer of one of the accused in a long-dragging sedition case are alarming. It is entirely possible that a similar situation is prevalent with regard to the evidence being used in many other UAPA cases. Such blatantly illegal practices could sound the death knell of the criminal justice system in the country. Hence the need for issuing this statement.

3. There are several examples that cause deep disquiet about the handling of digital evidence, particularly evidence to be found in personal digital devices. If justice is to prevail, the awesome capabilities that present-day surveillance and spyware technology offers investigative agencies must be circumscribed by strict, meaningful and enforceable statutory safeguards.

4. There are also persistent concerns about investigative agencies seizing, confiscating or searching through the entire contents of personal digital devices such as mobile phones and laptops of not only accused persons but even those called for investigation or questioning.

5. We wish to state that the extant generic search and seizure provisions in the Code of Criminal Procedure do not address the issues that arise in the context of search, seizure and handling of modern day personal devices.

6. It is therefore imperative that urgent legislative changes are put in place to guide the investigative agencies with due regard to and adherence to the following principles:

i) Right to privacy

The landmark judgment of the nine-judge bench of the Supreme Court in Puttaswamy’s case makes privacy a fundamental right. This judgment prohibits the investigative agencies seeking transcripts of communications-including Call recordings, WhatsApp/ Telegram/ Skype/ Messenger Chat logs and similar communication records in a wholesale manner without due regard to having to demonstrate necessity and proportionality and respect for privacy of correspondence.

ii) Right against self-incrimination

The right against self-incrimination is expressly protected under Article 20(3) of the Constitution and has also received statutory reinforcement under Section 132 of the Evidence Act and Section 161(2) of the Criminal Procedure Code. It is applicable at the stage of investigation and applies equally to witnesses as well as to the accused. Thus, the practice of investigative agencies acquiring passwords to unlock the personal devices or accounts is violative of the right against self-incrimination.

iii) Protection of Privileged Communication

Indiscriminate access to personal information, particularly personal communication, also involves the question of the right of protection of privileged communications, such as communication with one’s spouse, doctor, lawyer etc. At the time of investigation, safeguards must be in place to ensure that there is specific application of mind in respect of each unit of information searched for or seized to ascertain whether such communication has a reasonable likelihood of being privileged.

iv) Integrity of Electronic Evidence

Another important issue is the minimum standards to be adhered to in order to establish the integrity of the electronic material or device that has been taken into custody by the investigative agency. Forensic processes adopted by the investigation agencies also must look for and rule out both pre-seizure and post-seizure tampering of such digital devices.

v) Maintaining Transparency

Finally, there is need for full transparency with regard to the technical capabilities that the investigative agencies have either developed and/or acquired for the purposes of either surveillance or processing of digital evidence. The capabilities of our investigative agencies and the methods and processes they employ in relation to surveillance, digital data recovery, replication, storage and destruction must be proactively disclosed.

7. We are of the considered view that whenever the prosecution relies on such electronic/digital evidence, these should be taken cognizance of only after authentication by a Statutory Expert Body set up for the purpose. The law should also provide that if the Statutory Expert Body comes to the conclusion that there has been mala fide planting or manipulation of such evidence, then it must result in prosecution of the perpetrators under the relevant provisions of Chapter XI of the Indian Penal Code.

8. We, therefore, urge the Government of India to make necessary legislative changes on the above lines to prevent planting of incriminating material and false evidence in personal digital devices and lay down the overall practice and procedure of handling electronic evidence in a manner that will protect privacy, privileged communications, the right against self-incrimination and the integrity of the evidence and ensure complete transparency in order to ensure the constitutional guarantees of rendering justice to all.