Police have your phone. They tell you to unlock it. You say no.
Investigators may call that ‘non-cooperation’, but a label doesn’t settle anything. What matters is whether the demand had a legal basis in the first place, and whether forcing you to comply would violate your rights.
Seizing a phone and forcing its owner to unlock it are two different things. Having the power to do the first doesn’t give you the second. Your phone holds private conversations, bank records, work emails and a record of where you’ve been, and police would love to see it all. Getting in can be the difference between knowing what happened and guessing. No one is suggesting police shouldn’t investigate. The narrower question is whether chasing evidence lets the state make an accused person help build the case against themselves.
Article 20(7) of Nepal’s Constitution says no one accused of an offence can be compelled to be a witness against themselves. It sets a limit on how far investigators can go.
There is a real difference between collecting evidence that already exists and making a person do something so you can reach it. The messages, photos and documents on a phone were there before any investigation began. Asking for the password changes that. The owner stops being someone who simply owns an object and becomes a participant in the process that opens it up. So we can’t wave the issue away by saying, “The evidence was already there.”
Even unlocking a phone isn’t one act. Telling police a password you’ve memorised, unlocking the phone yourself, and letting investigators in through a separately authorised technical process are three different things, and the law may treat them differently. Lumping them together skips the very question that needs answering. The same goes for seizing a phone and looking through it. Being allowed to seize a device doesn’t, on its own, settle how its contents can be examined or what methods can be used to get in.
Article 28 protects the right to privacy, and the Privacy Act, 2075 BS, adds protections for personal information and communications, subject to other laws. These have to be read alongside police powers. A lawful investigation can justify looking at relevant digital material, but how far that power reaches, what procedure applies and which methods are allowed depend on what the law actually says. Nor does holding a phone give police free rein over everything in it.
It gets especially interesting when access depends on the owner’s own action. Suppose investigators could get the same data through a legally authorised forensic process. Does forcing the owner to give up a password then raise its own problem? And if the law allows compulsion in some cases, what safeguards come with it? These need answers drawn from legislation and court rulings, not assumptions about police power.
Investigators may see a refused password as an obstacle. But wanting cooperation isn’t the same as having a right to it. If there is a legal duty to comply, it has to be in the law, and someone shouldn’t be treated as having committed a separate offence just because they said no.
That cuts both ways. Citing Article 20(7) doesn’t automatically protect every refusal. Whether a demand amounts to compelled self-incrimination depends on what exactly is being asked and in what circumstances. Police should be able to explain the legal basis for their demand, and the person on the receiving end should be able to challenge it through the remedies the law provides.
Where the law is vague about compelled access to encrypted devices, practice becomes inconsistent, and evidence gets challenged. A good framework would treat four things separately: seizing a device, examining it, demanding a password, and using technical tools to get around security. For each, it would say what legal authority is needed, when a judge’s approval is required, what safeguards protect personal data, and what happens if someone refuses. It should also cover preserving evidence, documenting each step and protecting information unrelated to the alleged offence. None of this hampers good policing; it makes evidence more likely to hold up in court.
Nepal Police and the relevant bodies should check whether current laws and procedures deal with compelled access to password-protected phones and, if not, put a standard operating procedure in place.
A phone can be a seizable object, a store of existing evidence and a window into someone’s private life, all at once. The law should recognise those as separate things instead of assuming that power over one means power over all three. Whether, when and on what lawful authority the state can require an accused person to help it get in is the question Nepal’s legal institutions now have to answer.