BIOMETRICS AND ITS RIPPLE EFFECT ON SELF-INCRIMINATION
Securing mobiles and other digital devices is not a new concept but the ways in which they are secured have changed due to the advancement of technology allowing even biometric features to secure devices. Such an example is that of fingerprint censors that are widely available on most smartphones these days as an unlocking feature. While such a feature has been lauded to be a revolution in the technological sphere, it is equally pertinent that the legal implications of the same be duly examined. As was noted in the case of Kyollo v United States[i], the constitutional rights against self-incrimination ought to be safeguarded and the advancement of technology should not forgo such rights.
In light of the same, the author seeks to examine whether compelling an individual to provide their fingerprints for the sake of unlocking their phone is lawful. The validity of providing fingerprints thereby shall be analysed in the context of the Right to Privacy and the Right against Self-Incrimination as guaranteed by the Constitution while referring to the jurisprudence laid down by the Supreme Court [“SC”] in various landmark judgments on this subject.
Fingerprints And Self-Incrimination
Article 20(3) of the Constitution which lays down the Right against Self-Incrimination, provides that ‘no person accused of an offence shall be compelled to be a witness against himself’. Along with Section 161(2) of CrPC, Article 20(3) protects an individual from providing any oral testimony or statements that would lead to them being incriminated. Further, in the case of M.P. Sharma v Satish Chandra[ii], the Supreme Court of India, widened the scope of the phrase ‘to be a witness’ under Article 20(3), to also include the furnishing of evidence by the production of material in any modes that would incriminate the individual.
However, in the case of State of Bombay v Kathi Kalu Oghad[iii], the SC deviated from the broad interpretation laid down in the M.P. Sharma case to exclude the giving of thumb impressions and impressions of palm or foot or fingers for the purpose of identification within the purview of Article 20(3). The Court was therefore of the opinion that blood samples, saliva samples and fingerprints were not testimonial in nature since they possessed no evidentiary value by themselves and was not of such character that could incriminate the accused on its own. In the Kathi Kalu case, the Court considered that for an act to be ‘testimonial’, it should be one of volition that requires the application of mind and discloses ‘personal knowledge’ about relevant facts.
Fingerprints can be used as means to unlock phones and other devices in lieu of a passcode. Following Doe v United States that defined a ‘testimonial’ as ‘the expression of the contents of an individual’s mind’, it can be argued that fingerprints are also testimonial in nature since they could possibly lead to information that would incriminate the accused, when used as passcodes. The US Supreme Court, in the case of Riley V California[iv], ruled that a phone would contain a whole array of information in the digital form which may or may not be self-incriminatory and therefore requires broader protection within the scope of the 5th amendment rights which is analogous to Article 20(3) of the Indian Constitution.
The position of the apex court was clarified in the case of Selvi v State of Karnataka[v] where the Court discussed the factors to be taken into consideration while determining the scope of Article 20(3) of the Constitution. It stated that determining the purview of Article 20(3) was contingent on firstly, whether the materials would incriminate the accused on its own and secondly, if the materials would provide a missing link in the chain of evidence that would lead to the incrimination of the accused. Therefore, the SC was of the opinion that material such as fingerprints would be excluded from the protection under Article 20(3) to the extent that they are used only for either identification purposes or for corroborating facts that have already been disclosed over the course of the investigation.
The intrinsic nature and its inability to be concealed renders the fingerprints obtained incontrovertible. It was laid down in the Kathi Kalu judgment that fingerprints must be excluded from the purview of Article 20(3) as it does not involve either the ‘personal knowledge’ or the ‘volition’ of the individual. However, such fingerprints when used to unlock a device, could be used to discover relevant evidence derivative from the phone that may or may not be incriminatory.
Fingerprints and Privacy
Ever since the Puttaswamy judgment[vi] that brought Right to Privacy within the purview of Article 21’s Right to Life, due importance has been paid to privacy in all spheres, be it data protection, investigative processes or any other field. The only exceptions that exist to the Right to Privacy are either when there is a legitimate State interest or when there is a law made by the Parliament (as per Section 43 of the Personal Data Protection Bill) that calls for a proportionate curtailment of one’s privacy. In light of the Puttaswamy judgment, the Supreme Court of India in CBI v UIDAI[vii] ruled that no individual can be coerced or compelled to provide their fingerprints to any investigative authority as it would constitute an infringement on their right to privacy.
As per Puttaswamy, the scope of an individual’s consent in giving any more information beyond the object or purpose for which the fingerprints were obtained, is to be regulated (Para 130). Therefore, acquiring the fingerprints in such a manner so as to access the device of an individual would lead to the violation of privacy since it has been taken without the consent of the individual and would provide unconstrained access to the personal information of an individual as stored in that device. This is in stark contrast with the Honourable Supreme Court’s decision in the case of Pooran Mal v State of Maharashtra,[viii] where the Supreme Court held that there would be no constitutional bar on the admissibility of such evidence obtained by illegal means and the construction of fundamental rights were not to be construed so as to affirm its inadmissibility.
Passwords are generally given voluntarily and it involves the application of the mind while being delivered to a third party and therefore is protected under Article 20(3) of the Constitution. However, such a protection under law must not be denied to an individual simply due to the reason that his device and the information enclosed within is protected by a fingerprint, which practically serves the same purpose as that of a password.
While it might be true that the obtaining of fingerprints in itself may not provide any personal information that would lead to self-incrimination (except in cases of identification and corroboration as permitted by the Court), the evidence which is derived therefrom by gaining unauthorised access to the phone, renders the method to be self-incriminatory for the purposes of Article 20(3). In this context, it is also important to note the nexus between the fingerprints obtained and the unlocking of the phone. Therefore, with the clarification provided by the Court in the Selvi case and the recent Puttaswamy judgment on privacy, it can be argued that usage of fingerprints to access a device that may or may not lead to incriminating evidence is constitutionally barred under both Article 21 and Article 20(3) of the Constitution.
[i] Kyllo v United States, 533 U.S. 27, 36 (2001) [ii] M.P. Sharma v Satish Chandra, 1954 AIR 300 [iii] State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [iv] Riley v California, 2014 SCC OnLine US SC 71: 573 US __ (2014) [v] Selvi v. State of Karnataka, AIR 2010 SC 1974 [vi] Justice K.S. Puttaswamy v. Union of India, 2017 SCC 1. [vii] UIDAI v CBI, (2017) 7 SCC 157. [viii] Pooran Mal v State of Maharashtra 2 SCR 704 (1974)
Title Image Source: Tech Republic
The article has been written by Philip Ashok Alex who is a third-year student at National Law University Delhi.