Disregard ‘evidence’ from seized electronic devices that are not secured against tampering

There is this story that illustrates the presumed mode of operation of India’s police forces. A burglary takes place at the residence of a senior police officer. The effrontery of the burglar is such that he has tarried long enough at the crime scene to be spotted, and yield a description of what he wore and what he looked like. 

A junior officer, justifiably outraged, is determined to catch the burglar at the earliest. He calls four sub-inspectors and asks them to go forth and find the thief, each pointed in one direction of the compass.

Within a couple of hours, the sub-inspector who went north gets back, with a very chastened man in handcuffs. “I’ve got the rascal,” he declares, “he has confessed”. Before he ends his triumphant exultation, here comes the sub-inspector who had gone west, also with a man in handcuffs trailing behind. “He has confessed,” he says. The other two police functionaries also return, each with his trophy culprit, each of whom had confessed to the self-same crime.

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How could a mere sub-inspector let down his superior, how could the police not make short work of catching a crook who had violated the power and authority of law enforcement? Especially when every cop knows that the others on the job are going to come up with a volubly penitent crook before the day is out? Such professional considerations are more important than making sure that you get hold of the right man.

Presumption of compulsion

This tale, of course, does gross injustice to the men in uniform, who do their best, given the poor resources — of manpower, training, modern investigative tools — with which they uphold order in a society structurally inclined to disorder, with its many-layered hierarchy, massive inequalities and scarcity of legitimate means of social mobility. But it does explain the presumption of compulsion, which makes confessions made to a police functionary inadmissible as evidence under Indian law.

The presumption of compulsion remains even when the confession is supported by videographic evidence. On October 1 this year, a three-member bench of the Supreme Court overruled a Karnataka High Court verdict that had concurred with a lower court’s decision in a murder case, based on confessions made to the police, with videographic evidence of voluntary admission of guilt. 

The bench, comprising the then chief justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Sudhanshu Dhulia, had this to say: “”Both the trial court and the appellate court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements. Under Article 20(3) of the Constitution of India, an accused cannot be compelled to be a witness against himself. Again, under Section 25 of the Indian Evidence Act, 1872, a confessional statement given by an accused before a police officer is inadmissible as evidence.”

Fresh protocols

Does the presumption of compulsion that invalidates confessions to the police as evidence extend to evidence from electronic devices susceptible to manipulation? It should. Therefore, it is essential to devise protocols to guarantee that an electronic device seized by the police is not contaminated with incriminating material after it has been seized. All purported evidence gleaned from devices that were not secured against tampering at the time of seizure must be treated on par with confessions to the police.

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Is it fair to assume the possibility of investigating officers distorting or concocting evidence? The track record of police investigations does not permit the assumption that no manipulation of the evidence would be carried out by the police.

Blood, and lack of it

May 16, 2014 was a historic day. On that day, the results of the 2014 general elections were announced, paving the way for Narendra Modi to become Prime Minister. But that was not the only development of note that day. The Supreme Court acquitted six people who had been found guilty of conspiring to stage the 2002 attack on the Akshardham temple in Gujarat. While declaring the investigation that led to the conviction of these six to be shoddy, the court also noted an instance of blatant fabrication of evidence.

A letter in Urdu, purportedly written by one of the accused, had been retrieved from a pocket of one of the terrorists shot dead at the site of the attack, said the chargesheet, and this incriminated the purported writer and his associates. The court noted that the attacker’s body had been riddled with bullets, his clothes drenched in blood and yet, the letter supposedly retrieved from the shredded, bloodied pocket of the dead terrorist was pristine white. 

Correlating the letter’s decided anaemia with other shoddiness in the investigation, the court concluded that this bit of evidence was fabricated. The High Court, which had ratified the lower court’s guilty verdict, had also noted the sordid blemishlessness of the letter but dismissed it, musing that the truth is stranger than fiction, at times. Indeed.

The short point is that the police are not above fabricating evidence, if they are given a chance to. Therefore, it is vital to safeguard all electronic devices secured during search and arrest operations against subsequent tampering by anyone.

Protection of liberty

From those dubbed Urban Naxals to thoroughbred capitalist enterprises like Amazon, a range of petitioners are seeking the Supreme Court’s intervention, to ensure the data security of electronic devices seized by investigative agencies. This is a vital matter of protecting liberty and ensuring the due process of law.

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It has widely been reported that the computers of two, at least, of the Bhima Koregaon accused, had been infected with malware, which planted material on the machines that their owners had little to do with. Forensic analysis of electronic devices by specialist agencies must be a routine part of gathering data from such devices.

Whether it is hashing the contents of the device at the time of its seizure, to arrive at a number that would change if any kind of tampering of the data on the device is carried out subsequently, or other forensic tools, it is for the police to identify the best means of guaranteeing the security of the devices it takes into custody.

Imagine it is open to someone to plant evidence of fund manipulation or money laundering on machines that have been taken into custody by the police, the Enforcement Directorate or some other agency. The result would be blackmail, extortion and violation of citizen rights, quite independent of any political vendetta.

In the interest of preserving liberty and democratic governance, it is vital for the Supreme Court to protect citizens against the tampering of their electronic devices in the guise of investigation into suspected criminality. Evidence from unsecured devices should be deemed inadmissible. Period.

(TK Arun is a senior journalist based in Delhi.)

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