INTRODUCTION
“The privilege against self-incrimination is one of the greatest landmarks in man’s struggle to make him civilised”, said Erwin Griswold, the former Solicitor General of the United States, while enacting the Fifth Amendment[1]. He further regarded the Fifth Amendment as a lone sure rock in the time of storm and a symbol of the ultimate moral sense of community, upholding the best in US[2]. Through his statement, Griswold highlighted the right of an accused to remain silent, which becomes even more significant in the backdrop of a democratic nation.
India, also being a democratic nation, recognises the right against self-incrimination. It not only recognises it but enshrines it in Article 20(3) of the constitution[3] to make it a fundamental right which is guaranteed to all the ‘persons’, whether citizens or not. This right has been borrowed from the Fifth Amendment[4] of the US Constitution[5]. It is based on the maxim “Nemo Tenetur Seipsum Accusare”, which means that “No man, not even the accused himself, can be compelled to be witness against himself”[6]. However, there is a marked difference between the rights guaranteed by both the Constitution. While the US Constitution guarantees this right to accuse, along with the witnesses and parties to the proceedings[7], the Indian Constitution guarantees it against only the accused, thereby narrowing down the scope of the right.
ARTICLE 20(3) OF THE INDIAN CONSTITUTION
Article 20(3) of the Indian Constitution[8] states that, “No person accused of any offence shall be compelled to be a witness against himself”. This right is based on the fundamental canon of the common law jurisprudence, which presumes an accused to be innocent and establishes the duty on the prosecution to establish the offence.
On the analysis of the laid provision, three essential ingredients can be drawn which need to be fulfilled to take the safeguard provided by it: a) the person must be accused of an offence, b) the person must be compelled to be a witness, and c) such compulsion results in the person becoming a witness against himself[9]. All these ingredients must co-exist before the protection of Article 20(3) can be claimed.
TYPES OF INCRIMINATING EVIDENCE COVERED BY ARTICLE 20(3)
While the Constitution covers oral testimony without any doubt, suspicion has been cast over the documentary evidence, and the Supreme Court has tried to deal with it in several cases.
In MP Sharma v. Satish Chandra,[10] the Supreme Court gave a broad view to the term ‘evidence’. It held it to include not only oral testimony or statements in writing of the accused, but also included the furnishing of documentary evidence and even intelligible gestures as self-incrimination[11].
This question was reconsidered by the Supreme Court in The State of Bombay v. Kathi Kalu Oghad[12]. In this case, the court narrowed down the scope of this article to include only that evidence that is furnished based on the personal knowledge of the person giving the information, thus excluding the inclusion of documentary evidence within its ambit. It further allowed the impressions of thumb, foot, palm, or specimen of writing and signature to be taken by the investigating authorities[13]. It therefore balanced the rights of the accused and empowered the investigating agencies at the same time.
Further the advancement of technology armed the investigating agencies with the more technologically advanced techniques such as narcoanalysis, brain mapping technique and lie detectors posing further questions as to their constitutionality under the ambit of Article 20(3). These questions were answered by the Supreme Court in Selvi v. State of Karnataka[14]. In this case, the court held that compulsory administration of certain scientific techniques, namely the narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) are testimonial in character, thereby coming under the clutches of Article 20(3)[15].
These technological advancements have further achieved a new height, thereby posing further new questions that are still to be answered by the honourable Supreme Court.
RIGHT AGAINST SELF INCRIMINATION IN CASE OF PASSWORDS
According to the results of the Comprehensive Modular Survey: Telecom, 2025[16], over 85% of the Indian households own a smartphone. Among which over 86% people have internet access among them. This data clearly exhibits the increasing accessibility and connectivity of a man. Along with the increasing connectivity, smartphone also become a platform for providing various services such as e mail, youtube, instagram, snapchat and so on. These platforms can also be effectively used as a medium to know about the various activities performed by a person along with the insights of their personality, thereby serving as pool of information that can be used against a person in a trial. This should be considered in the backdrop of the fact that the investigating agencies are allowed to access these personal gadgets during the investigation[17]. All of these facts considered together poses a question, whether an accused can be compelled to give the passwords of these electronic devices or not and if compelled will it be considered as self-incriminatory or not. These questions are attempted to be answered by Karnataka High Court and Delhi CBI Special Court.
In the case of Virendra Khanna v. State of Karnataka[18], the Karnataka High Court considered this matter for the first time. The brief facts in this case were that the petitioner was booked under the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 and the Foreigners Act, 1946. During the investigation, police had seized the petitioner’s mobile and laptop and asked him to disclose the password of both, along with his Email account. Upon the refusal of the petitioner, the police filed two applications before the trial court, first in regard to conducting a polygraph test without the consent of the petitioner, and second for issuing a direction to the petitioner to disclose the passwords. The trial court approved both the applications against which the present petition lies before the High Court. The Karnataka High Court held that the polygraph test conducted without the consent of the accused is unconstitutional as laid down in Selvi v. State of Karnataka[19] but the directions for issuing the passwords were held not to be self-incriminatory in light of Article 20(3). The court further relied on the Kathi Kalu Oghad case[20] to hold that, producing the password is in the nature of a direction to produce a document which must be proved by the agencies in the court of law by applicable rules of evidence, thereby marking its constitutional validity[21].
Similar facts arose in the case of CBI v. Mahesh Kumar Sharma[22]. In this case the application was moved by the agencies based upon the judgment pronounced by Karnataka High Court in Virendra Khanna v. State of Karnataka[23] for seeking the orders to issue direction to the accused to disclose his seized computer’s password. However court took a different view as expressed in the aforesaid judgment and held that in line with view expressed in Kathi Kalu Oghad case[24] and Selvi case[25] the password/pattern forms the part of the personal knowledge of the accused, thereby infringing the right of accused enshrined in Article 20(3)[26].
CONCLUSION
The technological advancements in the field of telecom have raised certain questions that are still to be answered. While the status of passwords being self-incriminatory or not remains one of the questions, further issues arise on the issue of unlocking personal gadgets with the help of cyber specialists, along with the use of biometrics to access the data of these gadgets. It calls for laying down a clear policy framework on the part of the legislature that answers these questions. Along with this, the Supreme Court can also evolve a doctrine similar to the US doctrine of ‘forgone conclusion[27]’ which serves as an exception to the rule of self-incrimination and compel accused to produce a password in certain exceptional circumstances. Thereby, both the legislature and judiciary can work together to achieve a balance between the rights of the accused and the victim.
Author(s) Name: Gunjan Agarwal (Vivekananda Institute of Professional Studies Technical Campus, GGSIPU, Delhi)
References:
[1] United States Constitution amend V
[2] Erwin N Griswold, The Fifth Amendment Today: Three Speeches (Harvard University Press 1955)
[3] The Constitution of India 1950, art 20(3)
[4] United States Constitution amend V
[5] United States Constitution
[6] Shivam Mani Tripathi, ‘Right Against Self-Incrimination: A Comprehensive Study’ (2024) 4(6) Indian Journal of Integrated Research in Law<RIGHT AGAINST SELF-INCRIMINATION: A COMPREHENSIVE STUDY>accessed 4 January 2026
[7] McCarthy v Arndstein 266 US 34 (1924)
[8] The Constitution of India 1950, art 20(3)
[9] M P Jain, Indian Constitutional Law (7th edn, LexisNexis 2014)
[10] MP Sharma v Satish Chandra [1954] SCR 1077
[11] M P Jain, Indian Constitutional Law (7th edn, LexisNexis 2014)
[12] State of Bombay v Kathi Kalu Oghad [1961] 2 SCR 125
[13] M P Jain, Indian Constitutional Law (7th edn, LexisNexis 2014)
[14] Selvi v State of Karnataka [2010] 7 SCC 263
[15] M P Jain, Indian Constitutional Law (7th edn, LexisNexis 2014)
[16] Ministry of Statistics & Programme Implementation, ‘Comprehensive Modular Survey: Telecom, 2025’(PIB, 29 May 2025)< https://www.pib.gov.in/PressReleasePage.aspx?PRID=2132330®=3&lang=2> accessed 4 January 2026
[17] Bharatiya Nagarik Suraksha Sanhita 2024, S 94
[18] Virendra Khanna v. State of Karnataka [2021] SCC OnLine Kar 5032
[19] Ibid
[20] Ibid
[21] Ankur Mody and Siddharth Sijoria, ‘Right of Self-Incrimination in Digital Age: Whether Compelled Disclosure of Password/Biometrics is Unconstitutional?’ (SCC Times, 19 July 2023)<Right of Self-Incrimination in Digital Age: Whether Compelled Disclosure of Password/Biometrics is Unconstitutional? | SCC Times>accessed 4 January 2026
[22] Central Bureau of Investigation v Mahesh Kumar Sharma [2022] SCC OnLine Dis Crt (Del) 48
[23] Ibid
[24] Ibid
[25] Ibid
[26] Ankur Mody and Siddharth Sijoria, ‘Right of Self-Incrimination in Digital Age: Whether Compelled Disclosure of Password/Biometrics is Unconstitutional?’ (SCC Times, 19 July 2023)<Right of Self-Incrimination in Digital Age: Whether Compelled Disclosure of Password/Biometrics is Unconstitutional? | SCC Times>accessed 4 January 2026
[27] Zak Goldstein, ‘Can The Police Make You Turn Over Your Computer Password?’(Goldstein Mehta LLC, December 2)< https://goldsteinmehta.com/blog/foregone-conclusion-doctrine> accessed 4 January 2026
