Kerala High Court Lays Down Guidelines On Handling Digital Evidence Containing Sexually Explicit Materials

The Kerala High Court on Thursday laid down comprehensive guidelines to be followed by law enforcement agencies and Courts while handling sexually explicit materials. The Single Judge Bench of Justice K. Babu issued the guidelines while ordering a 'fact-finding enquiry' on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from a Memory Card relating to the incident.The Court today took a grave view of the fact that the memory card was connected to computer systems installed with devices capable of copying or transferring the electronic record or mutating the contents on three occasions, which underscored the systemic failure to protect the victim's interests, and violated her fundamental constitutional right."The emotional and psychological harm being suffered by the victim is beyond imagination...An inquiry/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. It will only maintain the majesty of the judicial process and the purity of the legal system. The offences alleged pertain to public justice. Therefore, the obligation of the system is more profound," the Court observed while ordering the inquiry to be carried out by the District and Sessions Judge, Ernakulam within a month. Taking note of the requests made by the counsel for the petitioner Advocate Gaurav Agarwal and the Director General of Prosecution T.A. Shaji for the issuance of guidelines to be followed by Law Enforcement agencies and Courts to ensure that sexually explicit materials are not leaked or transmitted, so as to infringe upon the fundamental constitutional rights of the victims, the Court observed:"Women and children often become victims of sexual offences. Law Enforcement agencies may recover electronic records containing sexually explicit materials during the investigation of those offences. These electronic records contain sexually explicit materials that are highly sensitive documentary evidence of the commission of the crimes...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". Guidelines Issued by the CourtThe following guidelines were thus issued by the Court to each of the agencies/authorities, while handling Sexually Explicit Materials(SEM): A. Measures to be adopted by Law Enforcement Agenciesi. If any officer of a law enforcement agency happens to seize/recover any electronic record related to a crime and realizes/has reason to believe that the same ought to be taken into custody, it shall be seized with the utmost caution, preventing any chance of destruction to the electronic records and their contents, and that the same shall be conducted maintaining the highest level of secrecy and privacy regarding the contents;ii. The electronic record ought to be separately packed and sealed in damage-proof packets, labelled clearly as 'Sexually Explicit Materials' (SEM) in luminous red ink; iii. Maintenance of register of electronic records containing SEM that have been seized and are in their custody; iv. Storing sealed packets in lockers, and thereafter after recording the time and date of placing the packet in the locker in the register. v. Responsible Individuals to be held liable, in case of access of the electronic record by any person after the same has been sealed and before entrustment of the record to the Court. B. Measures to be adopted by Courtsi. Register of electronic records containing SEM received to be maintained by each Court;ii. Register to include the time and date of receipt, details of the crime, a description of the packet, information about the person who presented the sealed packet to the Court, and declaration from the transmitting officer confirming that the packet was transmitted without any destruction or tampering;iii. Sealed Packets to be presented to the Chief Ministerial Officer of the Court, who shall examine the same for any damage or tampering;iv. Any packet not in proper condition or suspected of tampering to be reported to the Judicial Officer, who in turn shall summon the officer responsible for transmitting the packet to the Court, and draw a proceeding concerning signs of tampering of the packet with acknowledgment from the concerned officer; v. Sealed packets in proper condition to be presented before the Judicial Officer without delay, who shall place the same in a locker, after recording details such as time, date, etc. of placing the packet in the locker; vi. Details of transmission for examination, including the date, time, destination authority, the officer through whom it was transmitted, etc., to be recorded in the register; vii. Electronic Record returned after examination by the examining...

Kerala High Court Lays Down Guidelines On Handling Digital Evidence Containing Sexually Explicit Materials

Navya Benny

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