Privacy and evidence in India have been drastically redefined in the digital age. As people interact more on digital devices and platforms, their actions leave numerous digital footprints. Police agencies use them as evidence in criminal investigations. Although this change increases the state’s ability to resolve crime, there are deeper concerns about the right to privacy. It is a recognised fundamental right under Article 21 of the Indian Constitution. The boundary between privacy and digital evidence is a delicate compromise that requires an investigative authority to respect constitutional rights.
Constitutional Foundations
In India, the right to privacy has evolved in many ways and is no longer a peripheral issue but a fundamental right under Article 21. In the case of Kharak Singh v. State of Uttar Pradesh (1962), the Supreme Court first recognised privacy as a part of personal liberty. Gradually, privacy claims became popular in contexts such as telephone surveillance, as discussed in People’s Union for Civil Liberties v. Union of India (2003).
The landmark judgement in Justice K.S. Puttaswamy (Retd.). v. Union of India (2017) ruled that privacy is a fundamental right. This understanding has far-reaching implications for digital information because the Apex Court found that informational privacy is safeguarded, especially against state intrusion, without any legal basis to justify such intrusion.
Digital Footprints: Nature and Evidentiary Value
Digital footprints refer to the trails of data individuals leave behind through their use of digital devices, platforms, and networks. They may be classified into active (data shared with a purpose, e.g., social media posts) and passive (data gathered without specific user input, e.g. GPS trails and metadata).
Digital footprints now form vital evidence in criminal investigations, helping to establish timelines, locations and links amongst suspects and victims. Section 63 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) governs the admissibility of electronic records. It requires a certificate of authenticity to be presented by a party presenting the evidence. The courts have always maintained that digital evidence must meet the requirements of authenticity, reliability, and a chain of custody to be admissible. The case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors (2020) is a binding precedent of the Supreme Court on the admissibility of electronic records.
Privacy Concerns in Use and Collection of Digital Footprints
The collection and use of digital footprints by law enforcement agencies is a significant privacy concern. The powers of state surveillance, especially in statutes such as the Information Technology Act, 2000 and the Telecommunications Act, 2023, permit interception and access of electronic data. However, these powers are not absolute.
The 9-judge Supreme Court bench in the Puttaswamy case underlined the necessity of proportionality. The court stated that any intrusion into privacy should be merited by a legitimate state interest. Such intrusion must follow the due process of law. Moreover, service providers have a legal obligation to retain user data for a prescribed duration. This directly poses a risk to users’ privacy. Furthermore, this also increases the chances of a phenomenon known as functional creep. Here, information gathered to serve one purpose is subsequently utilised to conduct entirely unrelated investigations, compromising civil liberties and trust alike. Burt-Jaap Koops’ 2021 paper discusses functional creep in detail, tracing its origins to the 1980s in Australia.
Judicial Balancing and Legal Frameworks
The Indian courts have always struck a balance between privacy rights and law enforcement requirements. The Supreme Court has decided that privacy, though a fundamental right, is not absolute, and it should give way to strong interests of the people, including crime prevention and national security. The necessity of having warrants and a rigid chain of custody is required to ensure that abuse does not occur. These safeguards are further reinforced in Section 63 of the BNSS by requiring that digital evidence be stored, gathered, and handed over in accordance with the stipulated procedures, ensuring its reliability and integrity in the courtroom.
Challenges, Safeguards, and Reforms
Despite advances in law and judicial systems, several obstacles remain. The enforcement agencies are frequently not technically equipped and lack the resources to handle digital evidence properly, resulting in procedural lapses and possible miscarriages of justice.
Surveillance has a chilling effect on the right to express and associate, and this issue of concern is increasing, especially among vulnerable groups. Automated surveillance tools and algorithmic profiling can contribute to the increased level of discrimination and breach of privacy.
To overcome these challenges, reforms should entrench privacy-by-design principles in investigative practice, ensuring that privacy protection is part of the digital evidence framework.
Conclusion
The right to privacy and the use of digital footprints as evidence in India represent a dynamic and evolving area of law. While digital technologies empower law enforcement to solve crimes more efficiently, they also pose significant risks to individual privacy and civil liberties. The constitutional recognition of privacy, combined with robust procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita (BNSS), provides a framework for balancing these competing interests. Moving forward, continued judicial oversight, legislative reform, and institutional capacity-building are necessary to ensure that the pursuit of justice does not come at the expense of fundamental rights.