Last week, purported WhatsApp messages between Republic TV Editor-in-Chief Arnab Goswami and former Broadcast Audience Research Council (BARC) CEO Partho Dasgupta were leaked and reported by several sections of the media including BOOM. The WhatsApp messages formed part of the evidence filed by the Mumbai police in the chargesheet filed in the TRP scam case.
In September 2020, the Special Cell of the Delhi Police submitted its more than 17,000-paged chargesheet in the conspiracy case of last year's February riots in North East Delhi. The police claimed the conspiracy was mostly centred around three WhatsApp groups – Jawaharlal Nehru University (JNU) student Sharjeel Imam's Muslim Students of JNU (MSJ); the Jamia Coordination Committee (JCC) group and the Delhi Protest Support Group (DPSG) led by several well-known anti-Citizenship Amendment Act (CAA) activists including members from United Against Hate (UAH) and Pinjra Tod.
In the Sushant Singh Rajput case—the Bollywood actor was found dead in his suburban Mumbai apartment in June 2020—several private chats between the deceased actor's former girlfriend Rhea Chakraborty and Bollywood director Mahesh Bhatt were leaked to give credence to a murder theory.
This leads us to the key question. Are WhatsApp chats admissible as evidence in court? Can the police just seize your phone and start examining it? If yes, how do these issues stand against one's right to privacy?
Are WhatsApp chats admissible in court?
A WhatsApp message, like any other short message service (SMS) or e-mail, can be considered as electronic evidence if it is certified as such under section 65B of the Evidence Act, 1872. A piece of electronic evidence can thus be used in a trial if it is considered to be a relevant fact of a case.
Section 65B says any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document. If the police can prove that the electronic record is taken from a specific computer in question without being tampered, then it can be admitted as evidence without producing the original computer.
The police can thus "search" through WhatsApp chats during the investigation of a cognizable offence.
Provisions of the Indian Telegraph Act, 1885 and the Information and Technology Act, 2000 also allow law enforcement agencies to monitor regular phone and internet calls of an accused. But, since WhatsApp has claimed that its chats and calls are encrypted end-to-end, these, unlike regular phone calls, cannot be intercepted during transmission.
However, before that evidence reaches the court, there are several issues that need to be considered.
Can the police seize one's phone?
A phone is considered to be one's private property. According to Section 102 (1) of the Code of Criminal Procedure (CrPC), 1974, "any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence". Sub-section 3 compels the police to report such seizure to the Magistrate having jurisdiction who in turn will give custody—unless its an immovable property—thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
This means the police have to first prove how the phone is related to the commission of offence before it is seized. And once it is seized, the jurisdictional magistrate must be immediately informed of this development.
Electronic surveillance and the right to privacy
In 2018, a nine-judge bench of the Supreme Court in the Puttaswamy verdict accorded the right to privacy a fundamental right. But this is not an absolute right. Electronic surveillance in a post-Puttaswamy world needs to be revisited.
This is not just a matter of debate in India but even in countries where strict privacy laws exist. In Riley V. California—a case pertaining to warrantless searches of smartphones— Chief Justice of United States of America John Glover Roberts Jr. described cell phones as "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." Smartphones contain the "combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner's life", the decision in United States v. Adamou Djibo said.
"One has a fundamental right to privacy, but this can be taken away as per due process of law. The CrPC is a procedural law and considered to be due process. That's how, the police in the course of an investigation can see and use WhatsApp chats as evidence," advocate Sarim Naved said.
"In our country, the data protection laws are not in line with international laws. It is very easy for a sub-inspector sitting in a remote area or a village to access the telephone records of any individual, by writing a simple letter to the service provider," senior advocate Vikas Pahwa said referring to the observation made by Chief Justice Roberts. "Since people are largely not aware of their constitutional rights, the mobile phones, laptop computers and other digital equipment are seized by the investigating agency without any process of law," Pahwa added. "They don't object when the search takes place. The mobile phones & laptops are freely accessed, files are downloaded and used by the investigating agency without the certificate u/s 65B of the Indian evidence act, which is mandatory for using any digital evidence," he said.
"In America, the personal information of any individual cannot be accessed unless a warrant is obtained from the court of competent jurisdiction. In India, we have the laws but their implementation is a big issue. Indian Courts need to be more strict in cases of violation of the Fundamental Rights of the Citizens in the hands of the Investigating agencies, particularly in the privacy laws," Pahwa told BOOM.
"All fundamental rights including the right to privacy ordinarily apply against the state and not private corporations. So while disclosure of WhatsApp chats appears like the most blatant privacy violation but it has no constitutional remedy. This is another reason why a data protection bill is necessary to make the right to privacy meaningful in daily life. If the PDP (Personal Data Protection ) Bill, which is in its draft stage, were law today the Mumbai police would at least have to explain whether the disclosure had a clear and lawful purpose and why it was necessary for investigation. The disclosures, if true, are certainly sensational but at what cost?" Arghya Sengupta, Founder and Research Director of Vidhi Centre for Legal Policy said speaking to BOOM.
In 2017, Hindustan Times reported that three students of Global Jindal University accused of gangraping and blackmailing their junior were convicted based on WhatsApp chats that were presented as evidence. Main accused Hardik Sikri and his friend Karan Chhabra were awarded jail term of 20 years each, while the third accused Vikas Garg was handed a seven-year jail term. In another case, the Delhi High Court in 2018 upheld the acquittal of a rape accused based on WhatsApp chats that were submitted as evidence.
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