Vol.15 Issue 1 (2019)
Law Enforcement Access to Data in India: Considering the Past, Present, and Future of Section 91 of the Code of Criminal Procedure, 1973
Developments in modern technology and the Internet have resulted in vastly greater quantities of information being stored in electronic form. In addition to gains for convenience, innovation, and the economy, this trend also means that law enforcement and other government agencies are required to increasingly turn to the digital domain to gather evidence for investigative or enforcement purposes. In the Indian context, this usually means having to rely on pre-digital era procedural powers such as Section 91 the Code of Criminal Procedure, 1973. Drawing from existing literature, case law, and developments in policy, this article seeks to conduct an analysis of Section 91 with a view towards adding to the discourse surrounding calls for its reform. It concludes that, in its current form, the provision neither adequately accounts for privacy concerns nor provides clear and certain procedures for law enforcement agencies to compel production of evidence stored in electronic form. Several principles which have developed around the provision are no longer relevant in the digital age, others have the potential to excessively invade privacy, while several others internally conflict. It would be in the interests of both individuals and law enforcement agencies to seek timely review and reform of this provision to account for modern realities.
Tarun Krishnakumar is a lawyer admitted to practice law in India and the United States (California). He is a graduate of the National Law School of India, Bangalore.