Virendra Khanna v, State of Karnataka:

The Petitioner was a person caught in the crosshairs of law enforcement agencies, and his
mobile phone was allegedly important to advance the investigation into offences. In
September 2020, the police went before the trial court asking for court orders to direct the
Petitioner to unlock his mobile phone and grant access to email accounts, as the Petitioner
had refused to cooperate. The court duly passed this direction and it appears the Petitioner
complied. Then, the police moved another application before the trial court, this time asking
for directions that the Petitioner be subjected to a polygraph test to confirm the mobile / email
passwords, as it appeared that the Petitioner had been lying about the same during
investigation. The court allowed this application as well and directed the polygraph tests be
conducted — orders which, according to the Petitioner, were passed without ever giving him
an opportunity to be heard and without considering if he had indeed consented to undergoing
such tests. The Petitioner challenged this order and the consequent direction to undergo a
polygraph test.

Analysis:

1. The mobile of the petitioner is taken away and such an electronic device can be
decrypted by an expert on them. The data inside the phone or any other electronic
device for the matter is protected under right to privacy and the same cannot be done
without the consent of the owner of the said device

2. There exists no law enacted that empowers any Court to give direction to accused to
give password and information contained in mobile phones. So the petitioner giving
up his password is a form of self-incrimination. Also once the investigating agency
has an access to a electronic equipment more particularly smart phones and/or
laptops, the Investigating Officer has a free access to all data not only on the said
equipment but also any cloud service that may be connected to the said equipment,
which could include personal details, financial transactions, privileged
communications and the like.

3. The High Court in Virendra Khanna was keenly aware of the potential invasion of
one’s privacy at stake considering how much data is found on our digital devices. It
acknowledged that once police gain access to a device, even if for a specific reason,
that often enables full-blown access to all aspects to a person’s life. After heading in
this direction, the High Court simply noted that the use of any such data during the
course of investigations would not amount to a violation of the right to privacy, as it
was protected under the exceptions carved out. At the same time, the High Court
observed that unlawful disclosures of this material with third parties could certainly
amount to an actionable wrong.