'We Failed To Protect Victim's Fundamental Right': Kerala HC Issues Guidelines For Handling Digital Evidence Containing Sexually Explicit Material

The Kerala High Court has passed a set of guidelines for law enforcement agencies, Courts and examining authorities towards the handling of digital evidence containing sexually explicit material.

The Bench of Justice K Babu observed that, "On three occasions, the memory card was connected to computer systems installed with devices capable of copying or transferring the electronic record or mutating the contents. The necessary conclusion would be that we failed to protect the victim's interest, which resulted in the violation of her fundamental constitutional right. The victim alleges that the contents of the video footage were copied and transmitted. The emotional and psychological harm being suffered by the victim is beyond imagination."

Noting that there were no rules that guide the handling of sensitive electronic records, the Court directed that the measures formulated by it must be followed until a law was enacted on the subject.

To that end, it was said that, "It is submitted at the Bar that there are no rules that guide Law Enforcement agencies, experts, Courts, etc, on how to handle sensitive electronic records containing sexually explicit materials. It is further submitted that there is a pressing need to issue the guidelines to be followed by various agencies and institutions that may handle such electronic records containing sexually explicit materials. Therefore, Law Enforcement agencies, Courts and examining authorities are directed to comply with the following measures in the matter of handling sexually explicit materials till a law is enacted on the subject."

Counsel TB Mini and Counsel Gaurav Agarwal appeared for the petitioner, while DGP TA Shaji, Senior Government Pleader P Narayanan, Senior Government Pleader Sajju S, Senior Advocate B Raman Pillai, along with others, appeared for the respondents.

In this case, the Court addressed a petition filed by the victim of the 2017 actress assault case concerning the suspected tampering of digital evidence. The memory card, holding visuals of the assault, was accessed without authorization while in the custody of different authorities, including the trial court. The victim expressed concerns that the video contents might be shared anytime.

The High Court observed that an investigation into the allegation that somebody unauthorisedly accessed the memory card, and copied and transmitted the contents of it will only remove the cloud on the judicial system, and that it will only maintain the majesty of the judicial process and the purity of the legal system. Noting that the offences alleged pertained to public justice, the Court held that there was a profound obligation of the system.

In light of the same, the Court directed that the District and Sessions Judge conduct a fact-finding inquiry on the allegations of unauthorised access to the memory card and copying and transmitting its contents.

The Court also laid down guidelines to be followed by all concerned, including the Courts, to ensure that any sexually explicit material is preserved in such a manner that they are not accessed illegally.

Measures to be adopted by Law Enforcement Agencies

- Law enforcement officers seizing electronic records related to a crime must do so cautiously to prevent destruction.

- The process of seizure should maintain the highest levels of secrecy and privacy, documented separately in a mahazer.

- Seized electronic records, particularly those with sexually explicit materials (SEM), should be separately packed and sealed in damage-proof packets. Each packet must be labeled with a unique tag stating 'Sexually Explicit Materials' in luminous red ink.

- The law enforcement agency must maintain a register of seized electronic records containing SEM, including details like date, time, place of recovery, and officers involved.

- The sealed packet should be securely stored in lockers, with details recorded in the register, including acknowledgment of the person responsible for the locker's custody.

- Removal of the packet from the locker for transmission to the court must be recorded, specifying the time, date, and details of the officer involved. Details of the officer entrusted with delivering the sealed packet to the court should also be documented.

- If unauthorized access to the sealed electronic record is discovered before its transmission to the court, those responsible should be held accountable.

Measures to be taken by the Courts in handling electronic records containing Sexually Explicit Materials

- Every court must maintain a register for electronic records containing sexually explicit materials (SEM) received, including details of receipt, crime description, packet details, and presenting officer information.

- Sealed packets are to be presented to the Chief Ministerial Officer for examination, ensuring proper sealing and absence of damage or tampering.

- The receiving officer must acknowledge the sealed packet's proper condition and report any suspicions to the Judicial Officer for further proceedings if necessary.

- If scientific investigation is required, the Court may order it.

- Upon receiving the sealed packet in proper condition, SEM-containing electronic records are to be presented to the Judicial Officer without delay and securely stored.

- Details of transmission for examination, time, date, destination authority, and officers involved are to be recorded in the register.

- The Court must follow specific procedures for viewing, playing, and preserving the authenticity of SEM-containing electronic records.

- Upon case finality, including any appeals, the Court must send the electronic record for permanent destruction and obtain a detailed destruction report.

- The Judicial Officer must restrict removal of electronic records from the chest, and allow it only for specific trial-related purposes based on written orders.

Measures to be adopted by the Examining Authorities

- The Examining Authority must maintain a register for electronic records with sexually explicit materials (SEM) noting receipt, return, or destruction.

- Sealed packets marked SEM are to be received only if their seals are intact, stored in lockers/chests, and any tampering evidence is to be promptly reported to the Court.

- Entries in the register must include time, date, examining expert, and examination details.

- The expert must ensure no unauthorized access during custody and records details of any assistance sought during examination.

- Newly created electronic records during examination are to be separately sealed and labeled, returned to the Court.

- Copies or mirror images of electronic records taken by the examining authority are to be securely stored for future examination, and forwarded to the Court if ordered.

- Internal transmission to another division of the examining authority is to be recorded for authenticity and secrecy preservation.

- Electronic records for destruction are to be processed without providing opportunities for copying or extraction, with details reported to the Court.

- The head of the examining authority's department must ensure strict adherence to the specified directions.

Finally, the Court said that, "Before parting with this judgment, I would wish to request the Central and State Governments to formulate necessary rules for the safe handling of electronic records containing sexually explicit materials."

Cause Title: XXXX vs State of Kerala & Ors.

Click here to read/download the Judgment