Legality of WhatsApp surveillance in India

Digital evidence is something that has to be treated differently from physical evidence, and on a higher threshold.

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IN October last year, videos emerged on social media which depicted the Hyderabad City Police stopping pedestrians and citizens, and checking their WhatsApp chats on their mobile phones for keywords such as "ganja" and "weed" to look for incriminating chats. This was similar to a past operation of the Hyderabad City Police known as 'Operation Chabutra', as part of which police constables had detained members of the public, and had collected and checked their fingerprints, photographs, Aadhar card and drivers' license, among others documents. At least 21 citizens reported similar surveillance in Bengaluru between December 2019 and February this year, most of which has been unreported.

Such incidents raise crucial questions, that is, whether the right to search and seizure under the Code of Criminal Procedure ('CrPC') includes the right to stop and search mobile phones of the members of the public without a warrant, and whether it violates the fundamental right to privacy under Article 21 and the right against self-incrimination under Article 20(3) of the Constitution.