Your Phone is Not Police Property: Cyber Rights Every Indian Must Know in 2026

Your phone probably holds your bank app, your private chats, your photos and maybe your work files. For most people today it carries more personal information than their home does. Yet many still believe that once the police ask for a phone, they must hand it over and stay quiet. That is not the full picture. Indian law gives the police real power to seize and examine phones, but it also gives the person real protections. Knowing both sides matters.

Can the police take your phone at all

Yes, in the right circumstances. Under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a court can issue a summons, and a police officer in charge of a station can issue a written order, requiring a person to produce a document, electronic communication or communication device believed to contain digital evidence. This section covers phones and laptops directly, since it names communication devices likely to contain digital evidence.

This is not a blanket power to take every phone the police want. It is a mechanism for requiring production of something relevant to an investigation, inquiry, trial or other proceeding. Section 106 of the BNSS separately gives a police officer the power to seize property that may be connected with an offence, so seizure and mere production are handled by different provisions depending on the situation.

So the power to take a phone is real. The real question in most cases is whether the police followed the correct procedure while using it.

Does the police always need a warrant to search

Not necessarily. Section 185 of the BNSS lets a police officer investigating an offence search a place, without a separate search warrant, when there are reasonable grounds to believe that something needed for the investigation may be found there and cannot otherwise be obtained without undue delay. But this power comes with conditions. The officer must record the grounds of belief in writing in the case diary, and specify, as far as possible, what is being searched for. The search must also be recorded through audio and video means, preferably a mobile phone.

So the common line, that the police can search your phone without a warrant, is misleading on its own. Whether a particular search is lawful depends on which provision is used, the actual circumstances and whether the required safeguards were followed.

The search must be filmed

This is one of the biggest changes in the new law, and many people do not know it. Section 105 of the BNSS requires that the process of searching a place or taking possession of any property, including preparing the list of seized items and getting witnesses to sign it, be recorded through audio and video means, preferably on a mobile phone. The officer must forward that recording without delay to the District Magistrate, Sub Divisional Magistrate or a Judicial Magistrate of the first class. Section 185 repeats this requirement for the warrantless searches it covers.

The Nagpur Bench of the Bombay High Court dealt with what happens when this is skipped, in Khushbu Iddrish Khan v. State of Maharashtra, decided on 3 July 2026. Investigating a road accident case, the police visited a woman's home and, on a later visit, entered her bedroom and took her phone without a seizure memo, independent witnesses, an acknowledgement or any video recording. The Court held that the safeguards in Sections 185 and 105 are mandatory, not optional, and that an ongoing investigation does not excuse skipping them. It ordered the phone returned, held that the search and seizure violated the right to privacy under Article 21, and directed the state government to pay the woman ten thousand rupees in compensation, with liberty to recover this from the officers concerned.

In short, if a search was never filmed, or the memo and witnesses were skipped, that gap is a real weakness in the case against a person, and it can be argued in court.

Can the police force you to unlock your phone

This is where the law becomes less comfortable for the person being investigated. Article 20(3) of the Constitution says a person accused of an offence cannot be compelled to be a witness against themselves. The question is whether handing over a password counts as that.

In Virendra Khanna v. State of Karnataka, decided by the Karnataka High Court on 12 March 2021, a trial court had directed the accused to hand over his phone and email passwords, and he refused, arguing this was self-incrimination. The High Court disagreed. Relying on the older

Supreme Court decision in State of Bombay v. Kathi Kalu Oghad (1961), which had held that giving a fingerprint or a handwriting sample for comparison is not the same as making a statement, the Court held that giving a password is closer to giving a fingerprint than to giving testimony, so it is not covered by Article 20(3). It upheld the trial court's order directing the accused to disclose the password, and noted that if a person keeps refusing even after such a direction, the court can draw an adverse inference against them. The Court also said the investigating officer could ask for a password directly, and if the person refused, the agency could approach the court, seek expert help or, only after a court order, take further steps to access the device. It further held that once the investigating officer has this personal data, it cannot be shared with anyone else without the court's permission.

This is a Karnataka High Court ruling, not a Supreme Court judgment, so it does not bind the whole country in the same way. It is also debated. Legal commentators have pointed out that a password lives only in a person's memory, unlike a fingerprint, so comparing the two may not hold up, and that the Supreme Court's own reasoning in Selvi v. State of Karnataka (2010) on compelled personal knowledge points the other way. So the larger point stands: unlocking a phone is not simply a technical question. It touches privacy, search powers and the constitutional protection against compelled self-incrimination, and the Supreme Court has not yet settled it for the whole country.

Does your right to privacy disappear during an investigation

No. In Justice K.S. Puttaswamy (Retd.) v. Union of India, decided on 24 August 2017, a nine judge bench of the Supreme Court held that privacy is a fundamental right under Article 21 of the Constitution. But privacy is not an absolute right. A lawful investigation can involve some intrusion into private information, and the Supreme Court has said any such intrusion must have a legal basis, serve a legitimate state purpose and be proportionate.

Courts have built on this to say that a phone is not just an object like a bag, because it holds an entire personal and professional life. Judges have started saying that the police do not get an unlimited licence to browse through everything on a seized phone just because they were allowed to take it in the first place.

Why national guidelines for seizing devices took so long

For years, courts kept flagging the same gap, that there was no clear nationwide rule for how the police should handle phones and laptops during an investigation. In October 2022, the Foundation for Media Professionals filed a petition after journalists had their devices taken during raids, and it was heard alongside a related petition by five academics, Ram Ramaswamy v. Union of India. Both asked the Supreme Court to fix this gap.

Over several hearings, the Supreme Court told the central government to come up with proper rules, and observed that leaving the matter entirely to the discretion of investigating agencies was concerning. Draft guidelines were shared with the Court, covering ideas such as requiring a judicial warrant before seizure except in genuine emergencies, recording clear reasons for any seizure, and protecting journalistic, professional or academic material from being taken without a specific judicial warrant tied to the case. As of a case tracker updated on 31 January 2026, the matter is still pending, with no final guidelines issued by the Court itself. So treat any

claim of one settled nationwide rule with caution and check for updates before relying on it.

Can the police read your WhatsApp messages and photographs

If a device or account is lawfully accessed as part of an investigation, information on it can become evidence, including photographs, messages, emails and call records. But lawful access to a device is not the same as saying the police automatically have unlimited access to everything on it. The legal authority used, the purpose of the search, how the device is examined and the applicable safeguards all matter, especially since one phone can hold information about parts of a person's life that have nothing to do with the offence being investigated.

Can police keep your phone forever

There is no fixed number of days after which every seized phone must be returned. A device may need to stay with the police for investigation, forensic examination or court proceedings. But seizure does not give the authorities ownership of the phone, and continued custody depends on the circumstances and the legal process. A person can approach the appropriate court to seek the return or interim custody of a seized device. If your phone has been taken during an investigation, do not assume you must remain without it indefinitely. Speak to a lawyer about the right application for your situation.

Is a screenshot automatically accepted as evidence

Not necessarily. Digital information can be relevant, but questions of authenticity and the requirements for proving electronic records still matter. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with electronic records in Sections 61 to 63. Section 61 says an electronic record cannot be denied admissibility only because it is electronic, and Section 63, along with the certificate in its Schedule, sets out the requirements for identifying and verifying the source and integrity of such records. So taking a screenshot does not by itself make a disputed digital record conclusive evidence in court.

What to do if the police ask for your phone

Do not panic. You can calmly ask what the legal basis for taking the phone is, and whether a written order, seizure memo or other documentation is being prepared. If the phone is seized, watch for the video recording required under Sections 105 and 185, and make sure the list of items matches what was actually taken, signed by witnesses. Get an acknowledgement or receipt. Do not delete messages, photos, files or apps once you know an investigation is underway, and do not try to remotely wipe the phone. If you are an accused person, especially where the police are asking for passwords or account access, it is sensible to speak to a criminal lawyer before deciding what to provide, since current case law allows a court to direct disclosure even though the reasoning behind that is contested.

If your phone is taken in a cybercrime case and you are the victim rather than the accused, preserving the evidence matters just as much. Keep transaction messages, emails and screenshots intact, avoid editing or deleting anything that could later help establish what happened, and ask for proper documentation if the police need the device for the investigation.

A few things to remember

Your phone holds private information, but that does not mean it can never be investigated. The police have real powers to obtain, search and seize material relevant to an investigation, and those powers work within the framework of the BNSS and the Constitution. A warrant is not required for every search, but warrantless search powers are not unlimited either. Section 94 BNSS deals with requiring production of documents and devices. Section 185 sets out a framework for certain searches without a warrant. Section 105 requires audio and video recording of specified searches and seizures, and the Khushbu decision shows that Indian courts are now treating that requirement as a real one with real consequences, including compensation, when it is ignored. On passwords and biometric access, the legal position is more complicated than a simple "the police can force you" or "they can never touch your phone." The facts of the case and the procedure followed can make a real difference, and the Supreme Court has not yet laid down one settled rule for the whole country.

Conclusion

The law is trying to catch up with how much of daily life now lives inside a phone. New rules such as mandatory filming of searches are a real step forward, and courts have begun pushing back when the police cut corners, sometimes ordering compensation for it. But some of the biggest questions, such as when a person can be made to unlock a device, are still being worked out case by case, and a national policy on seizing devices is still pending before the Supreme Court. Your phone is not simply an object the police can hold onto without reason. Knowing where investigative powers end and legal safeguards begin is what lets a person tell a lawful search apart from one where their rights are being ignored.

Sources

Statutes

• Bharatiya Nagarik Suraksha Sanhita, 2023: Sections 94, 105, 106 and 185
• Bharatiya Sakshya Adhiniyam, 2023: Sections 61, 62 and 63, and the Schedule on
• certificates for electronic records
• The Constitution of India: Articles 20(3) and 21
• Cases
• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, decided 24 August
• 2017 (nine judge bench, right to privacy)
• State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, decided 4 August 1961
• (eleven judge bench, Article 20(3) and testimonial compulsion)
• Selvi v. State of Karnataka, (2010) 7 SCC 263 (narco analysis, polygraph and
• compelled personal knowledge)
• Virendra Khanna v. State of Karnataka, WP No. 11759 of 2020, Karnataka High Court,
• decided 12 March 2021 (passwords, passcodes and biometric access)
• Khushbu Iddrish Khan v. State of Maharashtra, Criminal Writ Petition No. 128 of 2026,
• Bombay High Court, Nagpur Bench, decided 3 July 2026 (mandatory videography
• under Sections 105 and 185, compensation)
• Foundation for Media Professionals v. Union of India, W.P. (Crl.) No. 395/2022,
• Supreme Court of India, tagged with Ram Ramaswamy v. Union of India, W.P. (Crl.)
• No. 138/2021 (pending, as of the case tracker dated 31 January 2026)
• Other sources
• Supreme Court Observer, case tracker for Foundation for Media Professionals v. Union
• of India: scobserver.in
• LiveLaw and SCC Online reports on Khushbu Iddrish Khan v. State of Maharashtra
• Bare Acts on India Code: indiacode.nic.in