‘Device seizure norms after talks with states’: Centre to Supreme Court
The Centre also said that it would be inappropriate to pass any blanket order regarding return of digital devices to persons under investigation.
Asserting that search and seizure of digital devices during probes “further legitimate state interest” and cannot be said to be violating privacy rights, the Union government has told the Supreme Court that common guidelines on preservation and handling of information stored on digital devices confiscated by investigating agencies across the country will require a consultation involving all states.
The Centre, submitting its affidavit in the top court, also said that it would be inappropriate to pass any blanket order regarding return of digital devices to persons under investigation “considering the exigencies of the investigation and the varying degrees of sensitivity of the data and the stage of investigation which may arise in each case”. It pointed out that the person concerned must approach the competent trial court to either seek cloned images of the hard drive of the devices which have been seized or return of the device.
The affidavit was filed on Friday in response to a public interest litigation filed by former professor of Jawaharlal Nehru University (JNU) Ram Ramaswamy and four other academics who demanded that guidelines be framed for investigating agencies regarding search, seizure, examination and preservation of digital and electronic devices and their contents.
In response, the ministry of home affairs (MHA) had in November last year filed an affidavit emphasising that the PIL is not maintainable since it does not refer to specific instances or involves live issues. The ministry had at the time also added that evidence of crime in the contemporary world is largely stored in mobile phones, laptops, tablets and such electronic devices and no accused can claim right to privacy in respect of such devices.
However, when this affidavit came up before a bench led by justice Sanjay Kishan Kaul in August this year, the court remained dissatisfied with the Centre’s response, and directed it to submit a fresh affidavit after taking into account various academic materials and international conventions provided by the petitioners.
Filing the new affidavit, the MHA said that good international practises could be adopted or adjusted to the Indian context, keeping in view the nature of crime, modus operandi of criminals and the procedural law within the constitutional boundaries, but it would necessitate
“If common guidelines are to be adopted, then it may only be adopted after wider consultation among all the stakeholders. It is submitted that it would be important and appropriate to take suggestions/objections from all quarters on an issue concerning enforcement of law and investigation of crimes. It is submitted that specifically, considering the federal structure and the entries in the Seventh Schedule (where law and order is a state subject), it would be appropriate to take states in the said consultative process,” said the affidavit.
The ministry also cited a manual followed by the Central Bureau of Investigation (CBI) as an ideal set of guidelines on search, seizure and handling of digital and electronic devices during investigations. The affidavit referred to various provisions of the CBI manual, adding it deals with the subject of digital evidence and designs a procedure along with significant safeguard which in tune with the statutory and constitution provisions in the country.
“It would be appropriate that the suggestions of the Union of India along with the relevant portions and the CBI Manual be provided to the relevant authority in various states before any exercise of laying down guidelines at a national level is considered as law and order and investigation of crime is primarily a state subject,” emphasised the affidavit.
About the investigating agency’s rights to seize digital devices, the Centre maintained that the search and seizure of documents or electronic devices are clearly protected as the “procedure established by law” which limits an individual’s fundamental right to life and personal liberty.
“The said processes are well within the judicially defined limits in the case of KS Puttaswamy (right to privacy judgment). It is submitted that the relevant statutory provisions are framed in furtherance of a legitimate State interest which was mentioned in the Puttaswamy judgment,” it added.
The Supreme Court is expected to take up the case on December 5.
The issue of seizure of digital devices like phones and laptops has become a flashpoint in the Bhima-Koregaon caste violence case with the accused alleging that the National Investigation Agency (NIA) planted evidence on the laptop of Rona Wilson.
Wilson, from whose laptop at least 10 incriminating letters were allegedly recovered, had in 2021 moved the Bombay high court to get the proceedings quashed on the basis of a report by a US-based digital forensics firm. This firm claimed that an attacker used malware to infiltrate Wilson’s laptop. The NIA had, however, at that time dismissed the report as a “distortion of facts”.