New Delhi: Five renowned academics, Ram Ramaswamy, Madhava Prasad, Sujata Patel, Deepak Malghan and Mukul Kesavan petitioned the Supreme Court in 2021 to regulate the search of electronic devices by agents of the state, usually the police. In the course of hearings, these petitioners have suggested a set of guidelines to be issued as directions by the court.
On November 9, 2023, the Supreme Court directed that the suggested guidelines be circulated to the Union government and the states. In fact, two days earlier, on November 7, while hearing a petition by the Foundation for Media Professionals, the Supreme Court had asked the Union to frame guidelines on this point, and remarked that uncontrolled power to access devices of journalists was unacceptable. The union government is expected to take into account the circulated draft of guidelines and submit a response in court. This is a big leap in establishing procedures around what has been arbitrary so far.
“An entire life, an entire profession and much more”
In her synopsis of arguments introducing the suggested guidelines, senior counsel Nitya Ramakrishnan said that Indian law on search and seizure, as it stands, is observed more in the breach and fails to comprehend the sheer breadth of information that would be present in any one electronic device. Provisions for the search or production of a ‘thing’ or ‘ document’ will not do for electronic devices, which are not any one document or thing, but “ an entire life, an entire profession and much more”.
The landmark 2017 Puttaswamy judgement recognises that privacy is a fundamental right that is entitled to a special protection in this digital age, and a regimen as followed in other democratic jurisdictions is sorely required in India, where abuse of state power and intrusion on privacy is rampant. It is reported that devices of over 90 journalists were taken by the Enforcement Directorate (ED) after the arrest of the NewsClick editor, Prabir Purkayastha and his colleague human resources head Amit Chakraborty in an alleged terror case. Devices of family members and whole establishments are taken away and never returned. Moving the court for their return takes at the very least a year, even when diligently pursued, she argued.
In countries like the UK and the US, all search and seizures, including those of electronic devices, are subject to the strictest of conditions. Additional protocols are in place for dealing with electronic devices.
In the US, the Privacy Protection Act forbids any search or seizure of material belonging to those involved in First Amendment activities. Work related to freedom of expression such as that of journalists, creative artists, academics, scientific researchers is considered as protected by the First Amendment. Such materials are exempt from search as a source of evidence.
The UK forbids search of or access to excluded, privileged or personal material, except under extra strict terms, and only upon a judicial warrant. In any event, search without a judicial warrant is the exception rather than the rule in these countries, unlike the situation in India. The laws of the UK and the USA had already been placed before the apex court in a compilation submitted by the petitioner academics.
The golden five
Extensively footnoted with references to the law in these overseas jurisdictions, the guidelines suggested by the academics comprise 18 points which may be summarised in five broad points
- What exactly is sought from an electronic device and why, must be produced in writing. This specificity must be reflected in a judicial warrant and must be shown as a basis for an emergency seizure. Before effecting a seizure, this written record will be served on the owner of the device or the person from whom it is to be taken. No one shall be summoned to produce their devices by the police. Search authorised by a warrant must be the rule and an emergency search and seizure an exception to be justified in writing.
- The device seized will be first examined by an independent authority in the presence of the owner/agent, and all privileged, personal and professional material – in fact all material irrelevant to the inquiry will be identified, separated, protected and returned immediately. Only material directly relevant to the investigation shall be taken away – after making three copies, one for the owner, one to be left sealed with the independent authority and the third taken for investigation, with the hash value noted at every stage.
- In the rare event that the device needs to be taken by the investigators, it must only be after enabling removal of all information irrelevant to investigation. The date and place of its return shall be indicated in the memo, which is to be made during the search, return of the device must be within 30 days of the seizure.
- Compelled disclosure of passwords is forbidden unless any statute expressly allows for it.
- No material seized in contravention of the guidelines shall be used in any court or in any manner. These conditions cannot be waived.
The importance of statute law
While challenges to laws enabling the State’s access to data stored in electronic devices, notably Section 69 of the IT Act, and other search and seizure provisions are pending in the Supreme Court, these guidelines are proposed by the petitioners as an interim measure until they can be replaced by more permanent measures that may come from court directions or through legislation.
Significantly, many directions originally issued by the Supreme Court have later been reproduced in statute law. For example, the Vishakha guidelines led to the Prevention of Sexual Harassment at the Workplace Act (what we know as POSH now) and the DK Basu and Arunesh Kumar guidelines led to amendments in the Code of Criminal Procedure (CrPC). More recently in Satender Kumar Antil vs Central Bureau Of Investigation on 11 July, 2022, the Supreme Court has given extensive directions for the bail of those in custody