Challenges In Admissibility Of Digital Evidence: Constitutional Concerns, Human Rights, And Comparative Perspective
- IJLLR Journal
- 3 days ago
- 2 min read
Mridul Bhatt, LL.M. (Cyber and Security Law), ICFAI University Dehradun, Uttarakhand, India
ABSTRACT
The BSA and BNSS together have placed fundamental rights under acute stress by giving the State powerful tools to seize and forensically clone entire digital devices without proportionate safeguards. The Supreme Court in K.S. Puttaswamy v. Union of India (2017) declared privacy a fundamental right under Article 21 and established a three-part test — legality, necessity, and proportionality — but current police practice routinely fails the proportionality prong. When a phone is seized for a minor financial offence and a full bit-stream copy is made, the police effectively walk away with a person's intimate photographs, medical data, and private conversations, none of which are relevant to the charge — a "fishing expedition" that the Puttaswamy framework squarely prohibits. The self-incrimination front is equally contested: courts have begun distinguishing between passwords, which originate in the mind and are therefore testimonial (protected under Article 20(3)), and biometrics, which are physical and arguably not. However, this distinction collapses in practice because unlocking a phone by any method gives the police access to deeply testimonial content, making the act of unlocking functionally equivalent to compelled self-incrimination. Beyond these individual rights, the BSA creates a structural "justice divide" — the State commands entire forensic laboratories while an ordinary accused cannot afford a single private expert to challenge a hash mismatch or a manipulated timestamp, violating the principle of equality of arms under Articles 14 and 21. Globally, the UK solved its equivalent bottleneck by presuming computers reliable unless the defence proves otherwise; the US made hash-certified evidence self-authenticating; and the EU standardised "qualified electronic signatures" that courts accept automatically. India's current dual-certificate regime, by contrast, demands manual expert endorsement for every piece of digital evidence — a 19th-century solution that urgently needs to absorb these three models to survive the AI age without sacrificing constitutional rights.
Keywords: Digital evidence, Admissibility, Privacy rights, Self- incrimination, Search and seizure, Equality of arms, Comparative law.
