PASSWORDS, PRIVACY, AND SELF-INCRIMINATION: COMPELLED DECRYPTION UNDER ARTICLE 20(3) OF THE CONSTITUTION
Authors: Samarth Udasin
Affiliation:
Abstract:

The proliferation of encrypted digital devices in modern life has introduced complex legal challenges at the intersection of criminal investigation and constitutional rights in India. This paper critically examines whether compelling an accused to unlock or decrypt such devices—whether through alphanumeric passwords or biometric identifiers—violates the right against self-incrimination under Article 20(3) of the Indian Constitution. Drawing from key Supreme Court rulings such as Kathi Kalu Oghad, Selvi, and Puttaswamy, the paper analyzes the evolving jurisprudence distinguishing between “testimonial” and “physical” evidence. It interrogates whether unlocking a device constitutes a testimonial act by revealing mental contents or conveying control over incriminating data. The analysis further explores forensic realities, the implications of biometric authentication, and the divergent approaches taken by Indian High Courts. Comparative insights from the United States, including the “foregone conclusion” doctrine, offer additional perspective on reconciling investigative needs with individual rights. The paper concludes that compelling decryption, especially via passwords, is presumptively testimonial and constitutionally protected, while biometric access remains legally unsettled. It advocates for a robust statutory framework requiring judicial oversight, proportionality, and safeguards for digital privacy, emphasizing the urgent need for the Supreme Court to clarify this critical area of digital constitutional law.

Keywords: Digital Forensics, Compelled decryption, Article 20(3), self-incrimination, digital privacy, biometric unlocking, password, testimonial compulsion, Indian Constitution, foregone conclusion doctrine
Vol & Issue: VOL.4, ISSUE No.1, january 2025