Police Phone Checking Rules: Can the police check your phone without warrant? Know the rules. can-police-check-your-phone-without-warrant-in-india-know-laws-and-rights

Police Phone Search Rules in India: In today’s digital era, our smartphone is not just a medium for talking. It contains our personal photos, bank details, private chats, emails and lifetime data. In such a situation, if suddenly a policeman asks for your phone and says ‘unlock’, what should be done? Such stories are often heard on social media or in real life, where during checking on the road, policemen start asking for someone’s phone or try to check his chats. In such a situation the question arises whether the police has this right? Can the police check your mobile without warrant? Do you have the right to refuse? And if you refuse to give the phone, what problem can happen? Let us know the answers to all these questions…

Can the police check your phone or not?

While Indian law considers privacy as a fundamental right, it also gives some leeway to investigative agencies in certain special circumstances. As a responsible Indian citizen, it is very important for you to be aware of these rights. In fact, Article 21 of the Indian Constitution gives every citizen the right to live with dignity and ‘right to privacy’. In the famous Justice KS Puttaswamy v. Union of India 2017 vs Government of India case of 2017, the Supreme Court had clearly said that privacy is an important part of human life and personal freedom. This means that your phone, which contains your entire personal and professional life, cannot be forcibly checked by the police without a strong legal reason. Arbitrarily peeping into someone’s phone is against the law.

What does the law of the country say?

Generally, the rules of police investigation and search are decided by the Criminal Procedure Code of the country (which now comes under the purview of the Indian Civil Security Code i.e. BNSS). Under Section 165 of the old law, the police get the right to search without warrant when the investigating officer has full confidence that evidence related to a crime is present in that place or device. There is a risk that evidence may be destroyed or tampered with while waiting for a warrant. The police officer has to record in writing the reason for searching without warrant and immediately inform the magistrate. Since smartphones have become a major source of evidence in today’s times, the courts have applied these rules to digital devices as well. That is, if the police have strong suspicion that there is evidence inside your phone of a crime, then only they can take such a step, but they will have to follow the prescribed procedure.

Can the police look at your phone as per your wish?

Yes, if you yourself give consent to the police to check your phone without any fear or pressure, then they do not need any warrant. But there are some conditions for this permission. You should be fully aware of what and why the police is checking your phone. You should not be subjected to any kind of fear, threat or pressure. If you are stopped on the road and the phone is taken under duress, then it will not legally be considered as your wish. In such a situation, you can say very calmly and politely, ‘Sir, I cannot allow you to check my phone. Do you have a warrant for this?’ No legal action can be taken against you for saying this.

When can the police look at your phone without a warrant?

UAPA (Unlawful Activities Prevention Act)

Under certain laws related to national security and serious crimes, police or investigative agencies get the power to check or seize devices even without a warrant. UAPA is also a similar law. This law applies in cases related to national security and terrorism, where there is a risk of evidence being destroyed if there is a delay.

NDPS Act

Even in cases related to drugs and narcotics, the police are allowed to search without warrant if they feel that the accused may make evidence disappear.

IT Act

Section 69 of this law gives the government the power to examine or decrypt (unlock) any digital data in the interest of the country’s sovereignty, security and public order. But remember, even in these serious cases, action is taken only after prescribed legal procedures and approval of senior officers. Generally these rules do not apply to any person walking on the road.

Can the police force you to reveal your phone password?

This is the biggest point of digital rights. Article 20(3) of the Constitution gives every citizen the ‘Right against Self-incrimination’. This means that ‘no accused can be compelled to testify or produce evidence against himself.’

Rules for Password or PIN

According to law experts, under this right the police cannot force you to reveal your phone’s password or PIN.

Fingerprint or Face ID (Biometrics)

This is a bit complicated. Some experts believe that forcibly unlocking biometrics is also a violation of privacy, although courts have had different stances on this. But the basic principle always remains strong in favor of citizen’s privacy. The Supreme Court had also made it clear in the Selvi v. State of Karnataka 2010 case that doing narco test or brain-mapping of someone without his consent is wrong, and the same applies to opening the digital lock.

What to do if the police checks your phone illegally?

• If a policeman ignores the rules and forcibly checks your phone, then it is a violation of your fundamental rights, against which the court can be approached.
• Any evidence extracted from the phone without legal process is not valid in the court.
• Departmental or legal action may be taken against the police officer who breaks the rules.

What should one do when the police asks for the phone?

• If ever such a situation arises during checking, do not panic nor argue or fight with the police. Talk very calmly.
• You can politely ask the reason. You can say, ‘Sir, in connection with which case or investigation do you want to see my phone?’
• Seek a warrant or order. Ask them if they have any search warrant from the court or written orders from senior officials.
• Take help of a lawyer. You have the right to consult with your legal advisor or attorney before granting access to any device.
• If the police takes the phone under pressure, then clearly say that you are not giving this phone willingly.