New Delhi: The Union government on Friday, November 25, told the Supreme Court that the search and seizure of digital devices during probes cannot be said to be a violation of the right to privacy, as it is “not absolute” and can be subjected to restrictions.The government was responding to a plea, filed in March 2021, by a group of academicians, seeking guidelines to regulate the seizure of electronic devices by investigative agencies.In its affidavit, it said that it would be inappropriate to pass any blanket order regarding the return of digital devices to persons under investigation since the degree of sensitivity varies in different cases.It added that the guidelines for all law enforcement agencies on this matter could only be issued after wider consultation with all the states.The petition was filed by former Jawaharlal Nehru University professor and researcher, Ram Ramaswamy; professor at Savitribai Phule Pune University, Sujata Patel; professor of Cultural Studies at the English and Foreign Languages University, Madhava Prasad; professor of Modern Indian history at Jamia Millia Islamia, Mukul Kesavan; and theoretical ecological economist Deepak Malghan.The petitioners had said that the “entirely unguided power” exercised by the investigative agencies to take control of electronic devices leads to loss, distortion and damage to the academicians’ precious research work, and there has to be a civilised way in which probe agencies can do it.They had said a copy of what is seized must be with the accused in a form that cannot be modified. This prevents both probing agencies and the accused from tampering with the material concerned and allows for a fair investigation.While hearing this petition in August, the apex court had said it was not satisfied with the Union government’s counter-affidavit.“Today, people live on this,” the bench had orally observed, asking the Union government to ensure that proper material, including international practices on the issue, are placed on record.Another petition on the same topic, filed by the Foundation for Media Professionals, was attached to this petition. It alleged that the existing rules were inadequate when it came to regulating the police’s power to go through and take possession of privately owned digital devices.On November 13, the apex court imposed a penalty of Rs 25,000 on the Union government for not replying within a stipulated time on the plea filed by the academicians.On October 31, the Delhi Police Crime Branch seized the devices belonging to The Wire‘s founding editors Siddharth Varadarajan, M.K. Venu, Sidharth Bhatia, deputy editor Jahnavi Sen and product-cum-business head Mithun Kidambi pursuant to a Section 91 notice issued in relation to a first information report lodged against them by Bharatiya Janata Party leader Amit Malviya.The Wire’s office in Delhi was also searched and the hard disks from two computers used by accounts staff were seized.The Wire has noted that no hash value – a unique numerical value used to ensure the integrity of a device and its data – of the phones, computers and iPads seized was given.At the time of going to press on November 28, The Wire and its editors have not received their electronic devices and the hash value.Also read: Interview: ‘Police Cannot Touch the Data on Your Computer Without Your Consent’While filing its report after the raid, The Hindu had quoted a Delhi Police officer, who remained anonymous, as claiming that the hash value of the digital document is not provided to the accused at the time of seizure and “is only provided later to the court for verifying the evidence’s authenticity”.In an interview to Article 14, former Supreme Court Justice B.N. Srikrishna said that the police must be able to demonstrate the need to gather data without consent and simply saying the purpose is a criminal investigation is not adequate.He was responding to a question which raised concerns over the absence of a data privacy law in India.“Under the CrPC, the police need to obtain a warrant to enter your house or arrest you. The same principle should apply if they’re dealing with data, because data privacy is also a fundamental right under Article 21. It is as sacrosanct as one’s right to life and liberty, both of which are protected under Article 21,” he said.“Therefore, data privacy cannot be taken away, unless there is a valid law passed by the appropriate legislatures. First, such a law must be passed by the legislature, no executive action can abridge this fundamental right. Secondly, the law must declare why it wants to infringe the fundamental right under Article 21.”“Finally, they will have to demonstrate that it was required to be done and could not be done by a different method. You want to kill a mosquito, you would use a swatter, not a howitzer. This is known as the doctrine of proportionality, which has to be maintained,” he said.