Introduction

Article 20(3) of the Constitution states that no person accused of an offence shall be compelled to be a witness against himself. The Supreme Court has interpreted this protection to cover testimonial compulsion. In State of Bombay v. Kathi Kalu Oghad, the Court explained the distinction between being a witness and merely providing physical evidence such as fingerprints or specimen handwriting. The principle was further developed in Selvi v. State of Karnataka. The Supreme Court held that involuntary techniques such as narco-analysis, polygraph tests and the Brain Electrical Activation Profile test raise serious Article 20(3) concerns because they involve extracting personal knowledge without the person’s voluntary participation. Therefore, Article 20(3) does not create a blanket immunity from investigation. Its focus is on compelled testimonial evidence that can incriminate the accused.

Does This Mean Police Cannot Seize Your Phone?

A smartphone can itself constitute important evidence in a criminal investigation. Police can therefore lawfully seize property and conduct searches when the requirements of criminal procedure are satisfied. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure from 1 July 2024, contains provisions dealing with the production, search and seizure of documents and electronic devices. Section 94 BNSS allows a Court or an officer in charge of a police station to require the production of a document, electronic communication or communication device that may contain digital evidence. Section 185 BNSS also permits a police officer to conduct a search when the statutory requirements are satisfied. The provision requires the grounds for the search to be recorded and provides for audio-video recording of the search. Therefore, the right to privacy does not make a smartphone legally immune from investigation.

What Happens When Police Ask For The Password?

The legal position becomes more complicated when the police seek the password, passcode or biometric access needed to enter the device. The direct Indian case on this issue is Virendra Khanna v. State of Karnataka. In 2021, the Karnataka High Court considered whether an accused could be directed to provide the password or passcode of a mobile phone and email account. The Court held that merely directing an accused to cooperate did not automatically permit investigators to force the person to provide the password. It also held that examination of the phone or email account amounts to a search and cannot simply be carried out without following the applicable legal procedure.

At the same time, the Karnataka High Court took the view that providing a password, passcode or biometric access would not, by itself, amount to testimonial compulsion under Article 20(3). The judgment therefore does not establish an absolute constitutional right to refuse every request to unlock a device. The State challenged the judgment before the Supreme Court. On 19 March 2024, the Supreme Court dismissed the State’s special leave petition and stated that it was not inclined to interfere with the High Court’s judgment. However, that order did not itself lay down a new Supreme Court constitutional rule stating that police can or cannot compel a person to provide a phone password.

What Role Does The Right to Privacy Play?

Article 21 protects life and personal liberty. In K.S. Puttaswamy v. Union of India, the Supreme Court recognised privacy as a fundamental right protected by the Constitution. However, the right to privacy is not absolute. A State intrusion into privacy has to satisfy constitutional requirements, including legality, a legitimate State purpose and proportionality. This becomes particularly important with smartphones because a single device may contain information far beyond the particular offence being investigated. A phone can reveal private conversations, photographs, contacts, financial information, medical information, location history and other personal data. Therefore, the legality of digital investigation involves more than asking whether the police have a reason to investigate. It also involves how the information is obtained, what legal authority supports the search and whether the intrusion remains proportionate.

Does BNSS Protect a Person From Self-incriminating Answers?

Section 180(2) BNSS provides an important safeguard during police examination. A person examined by the police is required to answer questions relating to the case, except questions whose answers may tend to expose that person to a criminal charge, penalty or forfeiture. This provision carries forward the protection that previously existed under Section 161(2) of the Code of Criminal Procedure. The provision is important when distinguishing between being required to provide evidence or information and being compelled to give an answer that may directly expose a person to criminal liability. It also reflects the broader constitutional protection against compelled self-incrimination.

Are Electronic Records Admissible As Evidence?

Electronic and digital records are recognised as evidence under the Bharatiya Sakshya Adhiniyam, 2023. Section 61 provides that an electronic or digital record cannot be denied legal effect merely because it is electronic. Section 62 deals with the proof of electronic records, subject to the requirements of Section 63. This means that data obtained from a phone can potentially become evidence in criminal proceedings. However, the mere existence of digital data does not automatically settle questions of relevance, authenticity or admissibility. The investigating agency and the prosecution have to satisfy the applicable legal requirements for relying on electronic evidence.

What Should a Person Remember If Police Ask to Unlock a Phone?

The important legal distinction is between the phone itself, the data stored on it and the act of revealing knowledge such as a password. Police may have lawful powers to seize a device and conduct a search, but the method used to obtain access to the device can raise separate questions under Articles 20(3) and 21. The exact position can also depend on whether the person is an accused, witness or another person connected with the investigation, the nature of the evidence sought and the legal authority being relied upon.

For this reason, the statement that “police can never make you unlock your phone” is too broad. Equally, the statement that “police can always force you to provide your password” is also unsupported as a general rule. The legal position surrounding compelled access to encrypted or password-protected digital devices continues to develop, and the precise circumstances of each investigation matter.

Important Cases

State of Bombay v. Kathi Kalu Oghad (1961): The Supreme Court explained the meaning of being “a witness” under Article 20(3) and distinguished testimonial evidence from physical evidence such as fingerprints and handwriting specimens.

Nandini Satpathy v. P.L. Dani (1978): The Supreme Court recognised protection against compelled answers that may expose a person to criminal liability during investigation. This principle is reflected in the protection contained in Section 180(2) BNSS.

Selvi v. State of Karnataka (2010): The Supreme Court held that involuntary extraction of personal knowledge through techniques such as narco-analysis and polygraph testing can violate the protection against testimonial compulsion under Article 20(3).

K.S. Puttaswamy v. Union of India (2017): The nine-judge Bench recognised privacy as a fundamental right under Article 21 and established constitutional requirements for State intrusion into privacy.

Virendra Khanna v. State of Karnataka (2021): The Karnataka High Court directly considered passwords, passcodes and biometric access to smartphones and email accounts. The Supreme Court later declined to interfere with the High Court’s judgment in 2024.

Conclusion

A smartphone may be a powerful source of evidence, but it can also contain an individual’s most private information. The legal challenge is therefore not simply about whether investigators can access digital evidence. It is about ensuring that the collection of that evidence follows lawful procedure while respecting constitutional protections against self-incrimination and unjustified intrusion into privacy.