oppn parties Accused Cannot Be Ordered To Part With The Password Of Their Digital Devices, Says A Delhi Court

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Accused Cannot Be Ordered To Part With The Password Of Their Digital Devices, Says A Delhi Court

By Sunil Garodia
First publised on 2022-11-02 14:27:50

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

In a logical and excellent verdict, Delhi special judge Naresh Kumar Laka refused to issue an order directing an accused to disclose the passwords of his digital devices seized by the CBI. The court supported its decision mainly on two things – the first being the Supreme Court verdict on nacro-analysis/lie detector test and the second being Article 20(3) of the Constitution which allows an accused to maintain silence as a right against self-incrimination and related verdicts by the apex court in such matters.

The court argued that since the Supreme Court had ruled in the nacro-analysis/lie detector case that the consent of the accused in mandatory before such an analysis/test can be conducted so that the disclosure of personal information is not obtained without such consent, the same logic applies in this case. However, the court said that the CBI was free to get the password cracked with the help of specialists.

Further, since their digital devices might contain information or furnish a link that might lead to their incrimination, the accused had the right to remain silent as per Article 20(3) of the Constitution. The court also took note of the recent enactment of Criminal Procedure (Identification) Act, 2022 which made it mandatory for an accused to allow the police to record his or her biometrics in certain cases but the court said that since the said Act did not specify password or user ID in the definition of 'measurement' the provisions of the said Act also cannot be used to force the accused to part with his password in the instant case.

Normally, crime investigating agencies either obtain the passwords through threat or torture failing which they employ 'hackers' to crack it. Seldom do they approach the court for a direction to the accused to disclose the password. But it seems that in the instant case, all their efforts to get the password, or crack it, have failed and they were forced to approach the court. But the court was right in rejecting the CBI plea and backed up its order with sound reasoning. 

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