New Delhi- A recent Delhi HC judgement provided relief to an individual using Article 20(3) of the Indian constitution but contradicted the telecom bill that has been passed by the parliament and green-lighted by the president. This raised a question if the same article of constitution can be used to safeguard individuals.

The Delhi High Court in December asserted that individuals accused of a crime cannot be compelled to reveal passwords for confiscated digital devices during an ongoing trial, citing the safeguard provided by Article 20(3) of the Indian Constitution. But examples of raids on media organizations have shown how several entities coerce "accused" to share information and other details.

In order to understand the intricacies, The Mooknayak talked to Ishaan Duggal, who is a Principal Associate at HAS Advocates, New Delhi. The advocate explained, “in the particular judgement, CBI argued that they are in possession of certain devices and the accused is not complying since they are not providing passwords. The court responded by saying ‘the accused will not sing to your tunes’ because an accused is protected under Article 20(3) which says no one can be compelled to be a witness against himself.”

This ruling was made in the context of a bail plea for a man implicated in an FIR involving E-Sampark Softech Pvt. Ltd. The company and its directors were alleged to have conducted a large-scale phone scam, defrauding US citizens of around 20 million USD through fraudulent call centres based in India.

Article 20(3) of the Constitution of India provides a fundamental right that explicitly safeguards individuals accused of any offense from being coerced into providing self-incriminating testimony. This constitutional provision serves as a protective mechanism, shielding individuals from any compulsion to act as witnesses against themselves during legal proceedings.

It is interesting to note that The Telecom Bill, which now has president’s assent, allows the government for the interception and disclosure of messages in a clear and understandable manner, without providing any exemptions for encrypted platforms. End-to-end encrypted platforms inherently ensure that only the sender and designated recipient(s) have access to messages, and this includes the service provider, in any format.

The bill gives the government the power to designate standards and conformity assessment measures related to encryption and data processing. This includes the identification, analysis, and prevention of intrusion in telecommunication services and networks. Essentially, this empowers the government to establish encryption standards for services like WhatsApp, posing a potential threat to the integrity of end-to-end encryption and private communication among individuals.

Talking about the provision in the bill, the advocate said, “but the proposed section 44 of the states ‘notwithstanding anything contained in the law enforced, where the central government is satisfied that any information, document or record in possession or in control of any authorized entity or assignee related to any telecommunication service, network or user spectrum availed by an entity, consumer or subscriber is necessary to be furnished in relation to any pending or apprehended civil or criminal proceedings an officer specially authorized in writing by the central government in this regard shall direct the authorized entity to authorize such information.’ The point is the officer can authorize any telecommunication service (Airtel, Jio etc.) to decrypt and share information.”

There have been incidences during sudden raids at organizations, where the devices are seized from them, or a person and they are asked to share login details. According to Ishaan, that will be then covered under Article 20(3). The advocate further explains, “during that time, the organization or the person who has been accused and has a charge sheeted investigation going on against them, and if they are asked to share information then self-incrimination comes into play and ideally Article 20(3) and the judgement will be helpful in defending the accused. No law can be more powerful than what is directed in the constitution. But if some other authority like their telecommunication service provider is asked to provide information, they will not be protected under it.”

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