PREFACE:

It’s 11 p.m. A young software engineer’s flat is raided by a police team under a warrant issued on a cheque-bounce case that has nothing to do with the occupants of the flat. The phone was in the hand of an officer, the screen of which had not been unlocked to read a delivery notification before he called his lawyer. After 10 minutes, all WhatsApp conversations, banking apps, photos, and location history sent over the past 3 years become “material evidence”—and can be seized without a memorandum signed and a hash value recorded. Was this legal? But did he have the option to discontinue unlocking it? It is in moments like these that this essay is intended to dissect what India’s new BNSS and BSA actually demand—how citizens still find themselves subject to these laws.

INTRODUCTION:

Today, a smartphone is not just something; it’s a document of an individual’s inner life. Inside a ‘palm slab’ glass, banking files, medical records, personal narratives, location trails, photos and intimate thoughts are typed into a note’s application. Absence of such a sense of “property” that was assumed under “traditional” nineteenth-century conceptions of criminal procedure is the issue confronting the police when they take that device. It is not, though, a sense of “property,” which was assumed in the “traditional” criminal procedure of the nineteenth century, that is presented to the police when they seize that device. The conflict between one century’s constitutional terminology, “search and seizure,” and the other century’s new reality of complete online ensnarement is what makes the question of seizing a device one of the most far-reaching and least consolidated areas of criminal law currently facing India.

The colonial-era procedural and evidentiary statutes were replaced with the new ones in India on 1st July 2024. The Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Indian Evidence Act, 1872 was replaced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA). For the first time, these two statutes incorporate digital evidence and digital searching procedures into the structure of the statutes – instead of courts adapting Victorian provisions to the twenty-first century. This article explores the new requirements on law enforcement for an officer who aims to search your phone, laptop or hard drive and what remains surprisingly mysterious.

THE CONSTITUTIONAL FLOOR:

Three propositions of the Constitution must always be remembered before any statute can be read, for each one of them would seem to pose a ceiling on anything that any seizure power could lawfully accomplish.

First, Article 21[1] guarantees the right to life and personal liberty, which the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017)[2] has held as including the right to ‘informational privacy’. Electronic devices that store more than ever before have already gathered personal information—such as, for example, personal phone records—make any intrusions by the police on such devices subject to the “legality, necessity and proportionality” test, as Puttaswamy has stated.

The second aspect is that Article 20(3)[3] states that the accused has to be put at liberty from “being forced… to be a witness against himself/herself”. Whether an unlocking of a device through revealing a password or a biometric amount to “testimonial compulsion” is a point that continues to hinge in the wave of controversy played in High Courts and has still not found an appealing resolution from the Supreme Court, as of mid-2026.

Third, the issue of whether techniques that capture information directly from the minds of individuals without their consent (narcosis, polygraph, brain-mapping) restore any mental privacy was already addressed in Selvi v. State of Karnataka[4], wherein the Supreme Court held that consent is always required for the use of such technologies. It is a belief that remains a dominant presence in the minds of investigators as to what they can or can’t do to send a suspect to open a locked device.

THE OLD REGIME AND WHY IT CRACKED:

According to the CrPC, seizure of the device was under a mix of general provisions, which were never intended for the operation of electronic devices: Section 91[5] (Summons to produce documents), Sections 93[6] and 94[7] (Search warrants), Section 100[8] (How a search should be conducted), Section 102[9] (Police power to seize property), and Section 165[10] (Search in urgent situations without a warrant. A hard disk was considered a document, and the inside of the phone’s operating system was considered a place. It worked, sort of, but it doesn’t provide any advice on forensic imaging, hash verification, chain of custody, or who might sit and wait while the police rummage through a person’s WhatsApp.

In many respects, the landmark judgment of the Karnataka High Court in Virendra Khanna v. State of Karnataka (2021)[11] Is the judiciary filling in this void through a judicial verdict? Faced with an accused who went to any lengths to evade handing over passwords of his mobile and computer, the Court said that the police could not force an accused to unlock a device unless there was a proper basis, which is provided by the existing framework of search and seizure in the CrPC. In most cases, the investigators had to obtain search warrants in accordance with Sections 93 and 94 of the old CrPC, with the emergency provision of Section 165 used only in a true emergency, the Court said. The judgment went beyond that and gave some of the first guidelines in India on privacy rights during the process of digital search and seizure, including preservation of original materials versus “cloned” copies for examination and hashing of harvested material. It has since been argued that the Court’s failure to consider a password as evidence in the form of a Document and not as testimonial evidence protected by Article 20(3) was a mistake and that the controversy is still alive and unsolved by the Supreme Court.

BNSS, 2023: CODIFYING DIGITAL SEARCH AND SEIZURE:

The BNSS does not create a wholly separate digital-search regime; instead, it modernises the general search-and-seizure chapter and threads technology requirements through it.

Section 94 — Summons to Produce

Section 94 is the continuation of the old Section 91 CrPC, which empowers a court or a police station officer to issue and send out a written order or a summons for producing a document or “other thing”— which was read to include electronic gadgets by the courts— required for investigation, inquiry, or trial. This constitutes a mechanism with which to pick up material evidence without having to go straight to search or seizure and is a cornerstone of material evidence collection. Most importantly, there is no explicit reference in Section 94 to compel the disclosure of a password, though presumably such a test should be granted, leading to the continued litigious debate over whether there is enough wording in Section 94 to compel the production of a device.

Sections 105 and 185 — Mandatory Audio-Video Recording

Sections 105[12] and 185[13] are the signature reforms of the BNSS for both physical and digital search. The earlier Sections 93 and 165 of the CrPC are thus modified such that every place searched and every property seized in an investigation should be documented using audio-visual technology – preferably on a cell phone. Section 105 would apply to search and seizure relating to cognizable offences, and Section 185 applies to searches conducted under a warrant. The ruling says the recording must apply specifically to the preparation of a seizure memo (list of items taken) and specifically to the witnesses signing the list, and thus the officers need to be writing down the seized phone, laptop or pen drive while having independent witnesses sign the list, including the writing of the list itself. The reform specifically addresses a long-held problem that allows for the abuse of power when evidence is planted on an accused during a recorded search. The recording shall forthwith be produced to the District Magistrate or Sub-Divisional Magistrate or Judicial Magistrate of the 1st class under whose jurisdiction the search is made or the jurisdiction of the Jurisdictional Magistrate for the district where the search is conducted, as the case may be. This is a really important change. Courts under the CrPC made their conduct of search without electronic documentation the least formal and subject to easy contestation and fabrications since the relevant provisions mentioned under Section 93 to 106 of the Registrar of the CrPC did not mandate electronic documentation. The legislature’s intention, as explained by several high courts, was to scale back to the level of transparency that bodycams have given to other policing functions. In Rollymol v. State of Kerala[14], the Kerala High Court noted that this technology integration seeks to facilitate the process of trial, enhance the quality of evidence and uphold the rights of the accused and the victim as well.

Sections 103 and 176(3) — General Safeguards and Mandatory Forensics

Section 103 establishes the general rules of the search process, such as the presence of independent and respectable witnesses, the “list of items seized” and the additional safeguard that the occupant of the premises searched be present; and these general safeguards extend to certain special search provisions such as those for searches involving digital devices as far as is practicable. In parallel with this, Section 176(3)[15] provides for a new, albeit related, innovation – forensic investigation (including digital and electronic investigation) to be conducted on all offences punishable by imprisonment of seven years or more, and to be video recorded on a mobile phone/other electronic device. The technical interpretation of the threshold is that because it encompasses a broad array of serious offences in which devices are often seized, record-keeping for such phones and laptops also has its own unique requirement, in addition to Section 105/185 record-keeping extended at the time of seizure. There is a glaring grey area, which the BNSS does not define, as to whether the recording device must be an official device or if a citizen of their household’s phone would be considered fine, and whether the tape needs to be stored on a pen drive, DVD or cloud-based storage device, for the time period, to be submitted to the magistrate. But, in reality, the absence of any police department-owned cameras has meant that many investigating officers have relied on their own cell phones, which could become an issue if the statute does not take battery life and chain of custody into account.

BSA, 2023: FROM SUSPECT EVIDENCE TO PRIMARY PROOF:

Carrying out a seizing activity is only half of the battle; the future of the data retrieved from the device in court is determined by the BSA ’23. In fact, the changes to the BNSS are a significant reform, which is even more critical in this case.

The old Evidence Act treated electronic records as secondary evidence, which necessitated a certificate under subsection 65B for admission, resulting in years of litigation before the Supreme Court ruled in the case of Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, 2020[16], on what constituted a mandatory certificate.

Under the BSA 2023, almost all electronic and digital records are subject to the same admissibility requirements found in the statute and not a secondary evidence fiction, provided they comply with certain verification requirements. Its treatment as primary evidence, as provided in Section 63[17] of the BSA, differs greatly from a previous view that electronic records were always of a secondary nature and subject to safeguards that guaranteed the integrity of the record. When a certificate is still to be made pursuant to Section 63(4)[18]It must verify the source of the record, the identity of the electronic record, how the record was created, and what devices and processes were used to create the record, and, thereby, establish the genuineness of the record and offer protection against inference of improvisation.

This is so important for lost or stolen devices. Even a certificate is not required if the manufacturer of the original device, the telephone or the laptop computer, presents it before the court, and the owner or user confirms that the data derives from this original device. In interpreting Khotkar, the Supreme Court has expressed that a certificate is necessary only in cases where electronic evidence is offered as secondary evidence; when it is possible to obtain the original electronic evidence, then no other is needed. The bottom line of the working world is that proper forensic seizure, the preservation of the original device without lost or deleted data, the production of a verifiable hash at the time of imaging and the establishment of an unbroken chain of custody have now become not just a correct and safe procedure, but the very way for digital evidence to gain evidentiary weight at trial.

THE UNSETTLED QUESTION: CAN YOU BE FORCED TO UNLOCK YOUR PHONE?

Seizure cannot be discussed without the passion problem, as investigators most often find a sad ending when nothing more is done than gain access to the device. There is no definitive Supreme Court decision yet to resolve the exact issue, nor is there consensus across Indian courts; the law remains dynamically and factually fluid.

This is in line with the principle of the Karnataka High Court in Virendra Khanna.[19], which held that giving of password/pin is closer to producing documents than giving evidence, thus not covered by Article 20(3). However, an important group of academic and judicial opinion strongly opposes this viewpoint. Scholars have contended that passwords belong to the realm of personal knowledge of the accused and should be protected by the same principle as Kathi Kalu Oghad (an accused cannot be compelled to provide a password) because it is not a “fingerprint” in any strict sense of the word for comparison to look for, but rather unlocks a whole universe of potentially incriminating data. A Delhi Special CBI Court has taken a different stance on the facts, refusing to allow disclosure of a passcode and yet permitting unlocking through fingerprints or face recognition — implying that Indian courts are leaning towards a distinction between biometric access (physical and compellable) and knowledge-based passwords (testimonial and protected). Let’s hope the Supreme Court clears up this muddy battle in the best interests of the Constitution, not by being able to abduct and use force to obtain the information, but by employing forensic extraction tools or court-supervised access.

SAFEGUARDS EVERY SEIZURE MUST SATISFY:

If taken together, the BNSS, the BSA and the case law point to a set of criteria which should be followed when a personal digital device is seized legally in India:

1. A legally valid basis for access, such as a section 185 search warrant, or a section 105 search in relation to an investigation, or a section 94 summons for production, rather than demands which are informal or coercive.
2. The point where the recording of the search, the seizure of the device and the sign-offs of the witnesses under Sections 105/185 of the Code are made.
3. Independent witnesses present at the search and preparation of the seizure memo (per the general search procedure, Section 103).
4. Forensic imaging not to be repeated with live examination of original device; hash-value verification to maintain integrity of data for subsequent certification by Section 63 of the BSA.
5. Confidentiality of extracted data – disclosure to third parties is limited unless ordered by a court – which Virendra Khanna strictly acknowledged, even though he allowed access.
6. If someone incurs seven or more years’ imprisonment, take a forensic and videographic picture of the offence as required by Section 176(3) BNSS.
7. Prosecution of recordings on time and seizure documentation – within 48 hours of a warrant-based search.

CONCLUSION: TRANSPARENCY WITHOUT RESOLUTION:

The most severe step that India has taken to modernise its criminal procedure through legislation is the BNSS and BSA. The enforcement of videography of searches and seizures is a sincere and hard-won protection against evidence planting, and since criminal investigations collect electronic data, the BSA has caught up with the law of evidence about electronic data. But the structure is still incomplete–at the point of importance to the ordinary citizen: when an officer demands a password. The question whether forced disclosure of a passcode is testimonial compulsion has not been decisively answered by any statute; rather, the question is left to a laundry list of High Court opinions and legal commentary: it must be answered by the Supreme Court.

The days have gone where a constable could just walk into a person’s phone at the back of a police van and have a conversation with no camera, no witness and no record… should be long gone now. The chances of whether that pledge will hold up when the police stations that are still the scene of so many official public sitars, where cash, connections, and sheer brazen rude service are still the most powerful technologies, are quite murky.

[1] INDIA CONST. art. 21

[2] Justice K.S. Puttaswamy v. Union of India AIR 2017 SC 4161

[3] INDIA CONST. art. 20(3).

[4] Selvi v. State of Karnataka AIR 2010 SC 1974

[5] The Code of Criminal Procedure, 1973, § 91

[6] The Code of Criminal Procedure, 1973, § 93

[7] The Code of Criminal Procedure, 1973, § 94

[8] The Code of Criminal Procedure, 1973, § 100

[9] The Code of Criminal Procedure, 1973, § 102

[10] The Code of Criminal Procedure, 1973, § 165

[11] Virendra Khanna v. State of Karnataka, (2021) SCC Online Kar 2235.

[12] Bharatiya Nyaya Sanhita, 2023, § 105, No. 45, Acts of Parliament, 2023 (India).

[13] Bharatiya Nyaya Sanhita, 2023, § 185, No. 45, Acts of Parliament, 2023 (India).

[14] Rollymol v. State of Kerala 2024: KER:95159

[15] Bharatiya Nyaya Sanhita, 2023, § 176(3), No. 45, Acts of Parliament, 2023 (India).

 

[16] Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

[17] Bharatiya Sakshya Adhiniyam, 2023, § 63, Act No. 47 of 2023.

[18] Bharatiya Sakshya Adhiniyam, 2023, § 63 (4), Act No. 47 of 2023.

[19] Virendra Khanna v. State of Karnataka, (2021) [or WP No. 11759 of 2020] (Karn.)