Kerala High Court issues guidelines on handling of digital evidence containing sexually explicit material

The Kerala High Court on Thursday passed a slew of guidelines for law enforcement agencies, courts and other authorities to ensure protection of the digital evidence containing sexually explicit materials..Justice K Babu noted that women and children often become victims of sexual offences and in such cases, the law enforcement agencies may recover electronic records containing sexually explicit materials.Upon finding that there were no rules to guide the authorities on how to prevent unauthorised access to such content, the single-judge considered it appropriate to issue the guidelines till a law is enacted on the subject.The Court also called upon the Central and State governments to formulate necessary rules for the safe handling of electronic records containing sexually explicit materials..The Court was hearing a plea filed by the victim in the 2017 actress assault case in respect of the alleged tampering with the digital evidence in the case.The memory card, which contained the visuals of the sexual assault, was found to have been unauthorisedly accessed while in custody of various authorities including the trial court.In her plea, the victim said that she apprehends that the contents of the video may be disseminated at any moment..Justice Babu concluded that the system had failed to protect the victim's interest which resulted in a violation of her fundamental right.Thus, the Court ordered the District and Sessions Judge, Ernakulam to conduct a fact-finding inquiry on the allegations of unauthorised access to the memory card and copying and transmitting of its contents..Considering the larger issue, the Court also issued following guidelines..I. Guidelines for Law Enforcement Agencies:Seizure and Documentation: Law enforcement officers must exercise utmost caution when seizing electronic records, preventing any chance of destruction. The entire process should be documented in a mahazer for transparency and accountability. Electronic records should be separately packed, sealed, and labeled with a unique 'Sexually Explicit Materials' (SEM) tag.Maintenance of Register: To ensure meticulous record-keeping, law enforcement agencies must maintain a comprehensive register detailing the seized materials. This register should include critical information such as the date, time, place of recovery, the source from whom it was recovered, and the officers involved.Storage and Transmission: Sealed packets containing sexually explicit material should be securely stored in lockers. A register must document the time and date of placing the packet in the locker, along with the acknowledgment of the person responsible for the locker’s custody. The transmission of sealed packets to the relevant court should be meticulously recorded.Accountability: In cases where unauthorized access to sealed packets is discovered, a thorough investigation should be conducted and those responsible should be held accountable. This ensures the integrity and confidentiality of the evidence..II. Guidelines for Courts:Receiving and Register Maintenance: A register should be diligently maintained, documenting details of electronic records received, including information about the crime and the presenting officer. The Chief Ministerial Officer should examine sealed packets to ensure proper sealing and condition.Locker and Chest Handling: Upon receipt, sealed packets should be securely placed in a locker or chest. Detailed records of proceedings, including the time, date and details of the officer responsible, must be maintained.Viewing Permissions: Strict controls should be in place for granting viewing permissions. Permission should be granted based on a court order, aiming to minimize instances of playing the electronic records. The court should record detailed proceedings regarding the viewing/playing of the electronic record.Destruction Process: Upon case finality including any appeals, the court should ensure the permanent destruction of electronic records. A detailed destruction report from the examining authority or a similarly notified authority should be obtained and retained as a permanent record..III. Guidelines for Examining Authorities:Register Maintenance: Examining authorities should maintain a comprehensive register of electronic records containing sexually explicit materials. This register should record the receipt, return or destruction of such records.Sealed Packet Handling: Authorities must confirm the sealed packet's condition upon receipt, storing them securely in lockers or chests. Any suspicion of tampering should be promptly reported to the court for further instructions.Expert Precautions: During examination, experts should take sufficient precautions to ensure the authenticity and privacy of electronic records. Details of any assistance sought during examination should be recorded in the register.Documentation of Copies: Any copies or extractions made during examination should be meticulously documented in the register. These copies should be securely stored for future examination purposes..The Court ordered the registry to forward a copy of the judgment to the Kerala Chief Secretary, the State Police Chief and the District Judges for necessary action..[Read Judgment]