Digital Seizures and Legal Rights
Abstract
The seizure of mobile phones, laptops, and other electronic devices has become one of the most consequential and least understood powers exercised by Indian police in the course of criminal investigation. A modern smartphone routinely holds more intimate information about a person than the interior of their home ever could — private conversations, banking details, medical records, location history, and professional communications all sit behind a single passcode. Yet for decades, the law governing seizure of such devices was borrowed wholesale from provisions drafted for tangible property such as stolen goods or weapons, with little regard for the unique privacy interests that digital data engages.
The transition from the Code of Criminal Procedure, 1973 (“CrPC”) to theBharatiyaNagarik Suraksha Sanhita, 2023 (“BNSS”), and from the Indian Evidence Act, 1872 to the BharatiyaSakshyaAdhiniyam, 2023 (“BSA”), both of which took effect from 1 July 2024, was billed as an opportunity to modernise this framework for the digital era. This paper examines whether that promise has been fulfilled. It asks what rights an accused person, a witness, or indeed an ordinary citizen possesses when police officers arrive seeking to search, seize, clone, or unlock a digital device, and what corresponding obligations the new statutes impose on the investigating agency.
The scope of this analysis covers three interlocking questions. First, what does the statutory text of the BNSS actually say about the power to seize digital devices, and how does it differ from the position under the erstwhile CrPC? Second, how does the BSA treat the resulting electronic material once it reaches the courtroom, particularly through the certification regime under Section 63? Third, and perhaps most contentiously, what constitutional protections — chiefly the right to privacy under Article 21 and the right against self-incrimination under Article 20(3) — continue to constrain police conduct even where the statutory text is silent or permissive.
Key terminology used throughout this paper follows the statutory definitions adopted in the new codes: “electronic record” and “digital record” are used interchangeably to describe data stored on or transmitted through a computer resource, communication device, or storage medium; “seizure” refers to the taking of physical or constructive possession of a device or its data by an investigating officer; and “certification” refers to the procedural requirement under Section 63 of the BSA for authenticating computer-generated evidence before a court. The paper argues that while the BNSS and BSA have introduced valuable procedural safeguards — most notably mandatory audio-video recording of search and seizure — significant gaps remain, particularly around the absence of a distinct warrant standard for digital devices and the unresolved status of compelled password disclosure.
Legal Framework
A.The Position Under the Old Code
Under the erstwhile Section 102 of the CrPC, a police officer could seize any property alleged or suspected to be stolen, or which was found under circumstances creating suspicion of the commission of an offence. The provision was drafted with tangible property in mind — cash, weapons, vehicles — and made no reference whatsoever to digital or electronic material. Courts were left to stretch the ordinary meaning of “property” to accommodate new realities. In State of Maharashtra v. Tapas D. Neogy, the Supreme Court held that even intangible assets such as a bank account could be brought within the scope of seizure under Section 102, provided the seizure was justified, documented, and connected to the alleged offence, while cautioning against speculative or fishing seizures. This judicial improvisation extended, in practice, to mobile phones and computers, but it left investigators and citizens alike without clear statutory guardrails on how such devices were to be searched, copied, retained, or returned.
B. Seizure Powers Under the BNSS
The BNSS restructures the erstwhile Section 102 into two distinct provisions: Section 106, which confers the power to seize property connected with an offence, and Section 107, which lays down the procedure to be followed once such property has been seized. This bifurcation is more than a drafting convenience; it signals a legislative intent to separate the question of authority to seize from the question of accountability after seizure, mirroring concerns that courts had already raised under the old regime.
Section 94 of the BNSS, which corresponds to the old Section 91 CrPC power to summon documents, now expressly extends to electronic communications and digital devices, empowering a court or police officer in charge of a station to require production of any electronic communication device likely to contain digital evidence, including for the purpose of examination. This express textual reference to “digital evidence” is new; the CrPC contained no equivalent language, leaving the summons power to be read into existence by analogy.
C. Mandatory Audio-Video Recording — Section 105
Perhaps the single most significant procedural innovation is Section 105 of the BNSS, a wholly new provision requiring that the entire process of searching a place or taking possession of property — including preparation of the seizure list and its signing by witnesses — be recorded through audio-video electronic means, preferably a mobile phone, and forwarded without delay to the jurisdictional Magistrate. The use of the word “shall” makes compliance mandatory rather than directory, a deliberate departure from the largely ignored witness-presence requirement under the old Section 100(4) CrPC, which frequently went unenforced in practice.
Commentators have noted that this reform directly responds to a recurring pattern of complaints — that searches were conducted without independent witnesses, that seizure memos were fabricated after the fact, or that devices were tampered with in transit. By requiring a contemporaneous audio-video record and prompt transmission to a judicial officer, Section 105 aims to convert what were once informal safeguards into enforceable statutory obligations, though its practical efficacy will depend on the availability of recording infrastructure at police stations and courts alike.
D. Electronic Evidence Under the BSA
The BSA now classifies electronic and digital records as primary evidence under Section 57, moving away from the older assumption that such records were inherently secondary in nature. Sections 61 and 62 clarify that a document is not inadmissible merely because it is in electronic form, while Section 63 preserves — and in fact expands — the certification requirement first introduced as Section 65B of the erstwhile Evidence Act, now requiring a dual-signature certificate completed both by the person operating the device and by a qualifying expert before computer output can be admitted. This dual-certification model is intended to strengthen the evidentiary reliability of digital material but has also drawn criticism for the burden it places on parties, particularly indigent accused persons who may lack access to a forensic expert willing to certify Part B of the schedule.
Analysis
A.The Constitutional Backdrop: Privacy and Self-Incrimination
The starting point for any analysis of digital seizure is the recognition of privacy as a fundamental right under Article 21 in Justice K.S. Puttaswamy (Retd.) v. Union of India, which held that informational privacy — including control over personal data held on electronic devices — falls squarely within the ambit of the right to life and personal liberty. That judgment fundamentally altered the constitutional stakes of any seizure exercise: a police officer taking custody of a smartphone is not merely taking an object into custody but is potentially accessing a person’s entire digital life.
Running alongside the privacy guarantee is Article 20(3) of the Constitution, which protects an accused person from being compelled to be a witness against themselves, a right operationalised in the criminal process through what was Section 161(2) of the CrPC and continues under the corresponding BNSS provision requiring that a person examined during investigation need not answer questions that would tend to expose them to a criminal charge. The unresolved question that runs through Indian jurisprudence is whether compelling a person to reveal a password, PIN, or biometric key to unlock a device amounts to “testimony” attracting this protection, or whether it is purely mechanical act akin to providing a fingerprint sample, which courts have historically treated as non-testimonial.
B.The Password Disclosure Conflict: Divergent Judicial Approaches
Indian courts have arrived at markedly different conclusions on this question, producing a body of law that remains genuinely unsettled. In Virendra Khanna v. State of Karnataka, the Karnataka High Court held that an accused person could be directed to share the password or biometric access to a device with investigating agencies, reasoning that this was analogous to furnishing a sample under the erstwhile Criminal Procedure (Identification) Act, and did not itself amount to self-incriminating testimony. A similar approach was adopted by the Kerala High Court, which permitted device access as a condition of bail in early 2022.
This position was directly contradicted later that year by a Delhi CBI Special Court in Central Bureau of Investigation v. Mahesh Kumar Sharma, which declined to compel an accused person to disclose a computer password, holding that doing so was protected under Article 20(3) as well as the statutory embodiment of that right, and going so far as to characterise the reasoning in Virendra Khanna as per incuriam. The Delhi High Court subsequently reinforced this protective approach in SanketBhadresh Modi v. Central Bureau of Investigation, holding that an accused cannot be coerced into disclosing a device password during a pending trial, since compelled disclosure of a password is inherently testimonial and therefore falls within the shield of Article 20(3), even as the Court declined to rule definitively on whether biometric unlocking stands on the same footing.
The result is a fractured landscape: an accused person’s fate on this issue may currently depend as much on the jurisdiction and forum of their case as on the underlying legal principle.
C. Pending Supreme Court Intervention
Recognising this uncertainty, the Supreme Court has been seized of consolidated petitions — including Ram Ramaswamy v. Union of India and a writ petition by the Foundation for Media Professionals — seeking comprehensive guidelines on the search, seizure, examination, and preservation of digital devices by investigating agencies, with the Court observing in November 2023 that clear guidelines were necessary given the recognition of privacy as a fundamental right. Draft guidelines placed before the Court propose, among other things, that electronic devices be seized only pursuant to a judicial warrant specifying the offence under investigation, that devices be imaged rather than retained in original wherever feasible, and that material found to be irrelevant to the investigation be excluded and not misused.
A related petition filed by the digital news platform NewsClick and its founder, following raids in which journalists’ phones and laptops were seized, has also been tagged with these proceedings, with the Supreme Court in January 2024 seeking responses from the Delhi Police, the CBI, and the Enforcement Directorate on the absence of settled procedural safeguards for digital seizure. As of the time of writing, the Supreme Court has not delivered a final, binding set of guidelines, meaning that the position under the BNSS and BSA continues to operate against a backdrop of judicially acknowledged but formally unresolved uncertainty.
D. Chain of Custody and Certification in Practice
On the evidentiary side, the Supreme Court’s decision in Anvar P.V. v. P.K. Basheer established that electronic records could not be admitted through the general secondary evidence provisions and required strict compliance with the certificate requirement, a position refined in Arjun PanditraoKhotkar v. Kailash KushanraoGorantyal, which clarified that the certificate is required only from a person who is in fact in a position to produce it, and that courts may summon the relevant custodian where a party cannot obtain the certificate independently. These principles now operate through Section 63 of the BSA, which has imported the certificate requirement wholesale while adding the dual-signature schedule discussed above. Practically, this means that a phone or laptop seized during investigation is only as useful to the prosecution as the paperwork accompanying its extraction: a missing hash value, an uncertified forensic report, or an incomplete chain-of-custody log can render an otherwise incriminating device forensically worthless in court.
The mandatory videography requirement under Section 105 BNSS interacts directly with this certification regime. A properly recorded seizure — showing the device being powered down, sealed, hashed, and transported — provides the factual foundation on which a later Section 63 certificate can rest credibly. Conversely, the absence of such a recording, while it may not by itself render seized material inadmissible, is likely to invite judicial scrutiny of the integrity of the seizure and could bear on the weight ultimately given to the evidence, following the cautious approach the Supreme Court has historically taken toward the reliability of search and seizure procedures.
Evaluation
A.Genuine Advances
The BNSS and BSA together represent a meaningful, if incomplete, modernisation of India’s search-and-seizure framework. The mandatory audio-video recording requirement under Section 105 is a structural improvement over the largely unenforced witness-presence rule it replaces, converting an informal courtesy into a documented, verifiable obligation with a defined recipient — the jurisdictional Magistrate — who can act as an external check. The express recognition of digital devices within the summons power under Section 94, and the elevation of electronic records to primary evidence under Section 57 of the BSA, likewise bring the statutory text into closer alignment with two decades of judicial improvisation, reducing the need for courts to stretch old language to cover new technology.
B. Persisting and New Gaps
Despite these advances, three gaps stand out as requiring urgent attention. First, neither the BNSS nor the BSA prescribes a distinct, elevated standard for the seizure of digital devices as opposed to physical property, despite the qualitatively greater privacy intrusion involved in accessing a smartphone as opposed to, say, a suitcase. The draft guidelines pending before the Supreme Court — proposing warrant requirements, proportionality limits, and mandatory imaging protocols — exist precisely because the legislature did not itself codify them, leaving the field to be filled by litigation that remains ongoing years after the concern was first raised.
Second, the conflict between Virendra Khanna and Mahesh Kumar Sharma on compelled password disclosure remains formally unresolved at the level of binding precedent. An accused person’s practical rights on this question therefore still depend on which High Court’s reasoning a trial court chooses to follow, an unsatisfactory state of affairs for a right as foundational as protection against self-incrimination. Legislative clarification — for instance, an explicit provision analogous to protections found in other jurisdictions’ device-extraction codes of practice — would remove this uncertainty more durably than incremental litigation.
Third, the dual-certification requirement under Section 63(4) of the BSA, whatever its evidentiary merits, introduces a practical access-to-justice concern. Requiring both a device-operator certificate and an independent expert certificate assumes ready availability of qualified forensic examiners, an assumption that does not hold uniformly across India, particularly outside major metropolitan centres. Absent expanded investment in forensic infrastructure, this well 7 intentioned safeguard risks becoming a barrier that disproportionately burdens accused persons and smaller litigants who cannot readily secure expert cooperation, while better-resourced parties face no comparable friction.
C. Proposed Reforms
Building on the analysis above, this paper puts forward three concrete recommendations. First, Parliament or the Supreme Court, through the pending guidelines, should adopt a proportionality-based warrant standard specific to digital devices, requiring investigating officers to demonstrate a nexus between the offence under investigation and the categories of data sought, rather than permitting blanket seizure of an entire device’s contents. Second, the unresolved conflict on password and biometric compulsion should be settled through binding Supreme Court authority or explicit statutory language, ideally distinguishing between mere access facilitation and testimonial compulsion in a manner consistent with the reasoning in Selvi. Third, the Central and State governments should expedite investment in accredited digital forensic laboratories and certified examiners so that the BSA’s dual-certification regime functions as a genuine safeguard rather than a practical obstacle to the timely administration of justice.
Conclusion
The BNSS and BSA mark the first serious legislative attempt in independent India’s history to grapple with digital devices as a distinct category of evidentiary material, rather than treating a smartphone as merely a smaller, more complicated version of a strongbox. The introduction of mandatory audio-video recording under Section 105, the express inclusion of electronic communications within the summons power under Section 94, and the restructuring of certification requirements under Section 63 of the BSA collectively demonstrate legislative awareness that digital evidence demands its own procedural architecture.
Yet awareness is not the same as resolution. The most consequential questions — how intrusive a digital search may be before it requires independent judicial authorisation, and whether an accused person can be compelled to unlock the device that holds the key to their own prosecution — remain suspended between conflicting High Court rulings and a Supreme Court docket that has acknowledged the problem without yet closing it. Until the pending guidelines in the Foundation for Media Professionals and Ram Ramaswamy proceedings are finally settled, accused persons, journalists, and ordinary citizens alike will continue to navigate digital seizure in a legal environment that is more transparent than it was under the CrPC, but not yet fully certain.
Looking ahead, the trajectory of Indian criminal procedure suggests that the law will continue to move toward greater codification of digital rights, driven both by constitutional pressure from the privacy jurisprudence inaugurated in Puttaswamy and by the practical reality that digital evidence now sits at the heart of nearly every category of criminal investigation. Whether that movement culminates in a distinct digital search-and-seizure code, as some academic commentators have proposed, or in incremental judicial refinement of the BNSS and BSA as currently drafted, the direction of travel is unmistakable: the law of seizure in India is being rewritten for a world in which the most sensitive evidence against a person often fits in their pocket.
REFERENCES AND SOURCES
Bharatiya Nagarik Suraksha Sanhita, 2023(Act No.46 of 2023),S 180(Corresponding to formerCrPC,1973 S 161(2))
Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023)
Code of Criminal Procedure, 1973 (Act No. 2 of 1974) (repealed w.e.f. 1 July 2024
Indian Evidence Act, 1872 (Act No. 1 of 1872) (repealed w.e.f. 1 July 2024)
Constitution of India, Articles 20(3) and 21.
Section 102,91,100(4) ,Code of Criminal Procedure,1973
State of Maharashtra v. Tapas D.Neogy, (1999) 7 SCC 685, (or AIR 1999 SC 3211)
Virendra khanna vs state of Karnataka (Writ Petition No. 11759 of 2020) .
Justice K.S. Puttaswamy (Retd.) v. Union of India.(2017) 10 SCC 1.
Ram Ramaswamy V.union of India Writ Petition (Criminal) No. 138 of 2021
Anvar PV V.PK Bhashir(2014) 10 SCC 473.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal(2020) 7 SCC 1AIR (All India Reporter): AIR 2020 SC 4908.
Justice K.S. Puttaswamy (Retd.) v. Union of India.(2017) 10 SCC 1.
Maneka Gandhi v. Union of India AIR 1978 SC 597 and (1978) 1 SCC 248
State of Bombay v. Kathi Kalu Oghad 1961 AIR 1808
Selvi v. State of Karnataka AIR 2010 SC 1974
Section 102,105, 94,106, and 107,
Bharatiya Nagarik Suraksha Sanhita,2023
Section 57,61,62,63 of Bharartiya Sakshya Adhiniyam 2023
Section 65B of Indian Evidence Act 1872
FAQ
Q1. What changed when the CrPC gave way to the BNSS so far as digital devices are concerned?
The CrPC never mentioned digital or electronic material; police relied on courts to stretch the old Section 102 to cover phones and computers. The BNSS explicitly splits the seizure power into Section 106 (authority to seize) and Section 107 (post-seizure procedure), and Section 94 now expressly authorises production of electronic communication devices, giving investigators and citizens a textual basis that previously existed only through judicial interpretation.
Q2. Does the law require police to obtain a warrant before seizing a phone or laptop?
Not under the BNSS as currently drafted. Neither the BNSS nor the BSA creates a separate warrant standard for digital devices; the ordinary seizure powers under Sections 106 and 107 apply just as they would to physical property. A distinct, proportionality-based warrant requirement is one of the reforms proposed in the draft guidelines pending before the Supreme Court, rather than something already codified in statute.
Q3. Can police compel someone to reveal a phone password or use a fingerprint to unlock a device?
This remains genuinely unsettled. The Karnataka High Court in Virendra Khanna treated compelled disclosure as analogous to furnishing a biometric sample, and therefore not self-incriminating, while the Delhi CBI Special Court in Mahesh Kumar Sharma and the Delhi High Court in SanketBhadresh Modi held that revealing a password is inherently testimonial and protected under Article 20(3). Until the Supreme Court rules definitively, the outcome may depend on which court hears the case.
Q4. What is the significance of the mandatory audio-video recording requirement under Section 105 of the BNSS?
It converts what was once an easily ignored safeguard, namely the presence of independent witnesses under the old Section 100(4) of the CrPC, into an enforceable statutory obligation. Officers must now record the entire search-and-seizure process and forward the footage promptly to a magistrate, creating a contemporaneous record capable of supporting the reliability of a later Section 63 certificate under the BSA.
Q5. Why does Section 63 of the BSA matter for digital evidence?
It governs how electronic records are certified for admission in court, and now requires signatures from both the person who operated the device and a qualifying forensic expert before such material can be admitted. This dual-certification model strengthens evidentiary reliability but can disadvantage accused persons who lack easy access to a forensic expert, particularly outside major metropolitan centres.
Q6. What role has the constitutional right to privacy played in this area of law?
The Supreme Court’s ruling in Justice K.S. Puttaswamy recognised informational privacy, including control over data held on personal devices, as part of the fundamental right to life and personal liberty under Article 21. This recognition underlies arguments that digital seizures ought to attract tighter judicial oversight than the seizure of ordinary physical property.
Q7. Has the Supreme Court settled the outstanding questions on digital seizure?
No. Consolidated petitions, including those filed by Ram Ramaswamy and the Foundation for Media Professionals, remain pending, and draft guidelines proposing warrant requirements and device-imaging protocols have been placed before the Court. As of the time of writing, no final, binding guidelines have been issued.
Q8. What happens if a seizure is not properly videographed or its chain of custody is incomplete?
This does not automatically render the evidence inadmissible, but courts are likely to scrutinise its reliability more closely. Gaps such as a missing hash value, an uncertified forensic report, or an incomplete custody log can significantly reduce the weight ultimately given to the evidence at trial.
Q9. What reforms does this paper recommend?
Three principal reforms are proposed: a proportionality-based warrant standard specific to digital devices; binding clarification, whether legislative or judicial, on the question of password and biometric compulsion; and expanded investment in accredited forensic laboratories so that the BSA’s certification regime functions as a genuine safeguard rather than a practical obstacle to justice.
Q10. Why is this issue relevant beyond individual criminal cases?
Digital seizures increasingly affect journalists, activists, and ordinary citizens, as illustrated by the NewsClick-related proceedings tagged with the pending Supreme Court petitions. How these questions are eventually resolved will shape the balance between effective criminal investigation and the constitutional protection of privacy and personal liberty for a broad cross-section of society
By-Gayatri Sonje
