KOCHI: The recent controversy surrounding actor Dileep’s objection to handing over his gadgets and unlocking of them has raised doubts regarding the privileges of a suspect in a case. Though there were allegations on the special privileges a celebrity was allowed to enjoy, legal experts clarify that the suspect/accused has rights over his/her gadgets which need not be produced before law enforcement agencies on a simple request.
Though the verdicts regarding the confiscation of gadgets including smartphones, laptops or pen drives are rare and inconclusive, the fundamental constitutional rights are predominant in defining the initial procedures, say experts. According to Anivar Aravind, a public interest technologist based in Bengaluru, the verdicts on search and seizure are very less and they are not properly defined and still evolving on the basis of new cases.
“When we argue from a civil rights point, if a police official demands your gadgets through a notice, the owner (suspect in the case) has the right to deny it. However, if the same is confiscated during a search operation, the owner cannot object to it. The probe officer has the right to only confiscate the gadget, but cannot demand the owner to unlock the pattern or open the device. Though these are constitutional rights, the same is not practised in many cases,” said the technologist.
However, when the suspect declines to hand over the gadget to the investigation officers, the law can be interpreted against him, according to M S Saji, a criminal lawyer.
“If the suspect is unwilling to hand over his gadget, it will turn against him as ‘adverse inference’, which will be an interpretation against him during the trial. This is similar to paternity dispute cases, where the father refuses to undergo a DNA test, when the mother of the child demands it. If the man refuses in the family court to undergo the test, it turns out to be an adverse inference against him,” he said..
The Information Technology Act says all gadgets are of evidence value, explained the advocate. If the petitioner wants to submit gadget as evidence, the court has to value it under Section 65B of the Indian Evidence Act, 2002. Any information contained in an electronic record that is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document. So, this ensures the petitioner safely deposited evidence before the court. Those pieces of evidence are also equally important before the court in proving the crime, he said.
Right to privacy
Recently, there have been some incidents where the police started checking the gadgets of youth for messages on weed and other drugs in Hyderabad. This is a violation of rights, experts say
Highlights
Random checking of phone and privacy
The lack of awareness about constitutional rights of the citizens is making the people fall prey to the threats of some police officers who randomly check their smartphones on suspicion, said a senior police official. He added that the ignorance of the cops as well as the citizens results in such heinous acts and that no officer has the right to take away the phone or ask for the password.
“The police have the right only to confiscate the gadget during an investigation process. That does not mean that they can randomly demand or take away the gadgets on the basis of some suspicion. If the cyber wing/forensic team unlocks the phone, the evidence stands. However, if the accused himself is unlocking the phone, the evidence does not stand,” the officer explained.
According to Anivar Aravind, a public interest technologist based in Bengaluru, there are common incidents where the police confiscate your mobile phone even during a traffic law violation. “This should not be allowed. The public should be made aware that the police have no right to randomly confiscate their personal gadgets or demand to open them. The citizens can refuse outrightly to hand over their gadget,” he said.
There have been incidents in which youngsters are often stopped by the police on the road to check their phones, searching for any leads to drug peddlers. Experts explained that it is a pure breach of constitutional rights and no police officer can demand personal gadgets unless during a search operation and that too by following proper procedures.
