Search and seizure of electronic devices in India: time for a change?

Abstract

In the past two decades, there has been an exponential rise in the use of technology for commission of crimes. In certain scenarios, investigation of such crimes call for inspections of an accused's personal electronic devices. In India, there is no law regulating the field of search and seizure of electronic devices in a criminal investigation. Only recently, Virendra Khanna v State of Karnataka laid down certain guidelines in this regard. Furthermore, on multiple occasions, the Indian Courts have relied on the US jurisprudence on the matter. Due to a well-developed jurisprudence in the USA on this subject, the authors have chosen to do a comparative study between the two countries. This paper seeks to examine how these two major democracies balance the right to privacy against the need to unearth information for better investigation. While analysing the lack of a well-rounded law on the matter, this paper also analyses the provisions in the Digital Personal Data Protection Act 2023 and the Bharatiya Nagarik Suraksha Sanhita Bill 2023 and highlights the missed opportunities to frame guidelines on the issue of search and seizure of electronic device. Section II of the paper introduces the readers to the law on electronic search and seizure in the USA. Section III examines the Indian position. It discusses the law as it was pre- Virendra Khanna, then goes into the law laid down by the Karnataka High Court in Virendra Khanna and critically analyses the same. It also looks at the progress made in the field through other legislation. Section IV deals with a comparative analysis of the USA and Indian law on the subject and section V provides mechanisms and ways in which the current law can be modified to deal with some of the inadequacies of the matter.