Supreme Court calls for norms on seizure of devices by probe agencies
A 2-judge bench of the apex court is hearing a petition demanding regulation of the police’s power to search or seize digital devices.
Unchecked powers with the investigating agencies to search and seize digital devices during probes is not only “very very dangerous” but also impacts the privacy of individuals, the Supreme Court said on Tuesday, imploring the Union government to come up with guidelines on confiscation of devices, such as mobile phones and laptops, within four weeks.
“It is dangerous all powers are with the agencies...it is very very dangerous,” remarked a bench of justices Sanjay Kishan Kaul and Sudhanshu Dhulia while hearing a petition filed by the Foundation for Media Professionals (FMP) demanding regulation of the police’s power to search or seize digital devices.
Addressing additional solicitor general SV Raju, who appeared for the Centre, the bench said that the issue was “serious” because media professionals will have the details of their sources in their devices. Other people, it said, will have equal concerns for privacy, which is now acknowledged as a fundamental right.
“There must be some guidelines. It is a matter of privacy,” it told the ASG, who responded that investigating agencies cannot be shut out completely. Raju added that devices need to be scanned fully to identify what is required for an investigation.
“This all-pervading power”, the court said, “is dangerous”, when there are no guidelines to regulate search and seizure.
“You must have some guidelines. You want us to do it, we will do it. But my view is that you ought to do it yourself. It can’t be a State that’s run through its agencies. You must analyse what kind of guidelines are necessary to protect (people)...This is not adversarial,” it told the ASG.
Senior counsel Siddharth Aggarwal, representing the petitioner, raised concerns that private data from a person’s device can be misused by the State and that many state governments have in fact been resorting to such abuses. Aggarwal added that a digital device even has biometric details, prone to be severely misused against the owner of that device.
“One dispensation teaches to another,” retorted the bench, asking the ASG to consider putting in place some guidelines.
Fixing the next hearing of the matter on December 6, the bench recorded in its order: “There has to be a balancing of interests, and proper guidelines need to be in place to protect media professionals. We would like the ASG to work on this and come back on this issue. This is also in view of the aspect that privacy has itself been recognised as a fundamental right.”
FMP approached the Supreme Court in October 2022, stating that digital devices, especially personal devices such as mobile phones and laptops, contain more sensitive personal data about individuals than any physical space, such as a house or a vault and can be found with a person almost at all times, and are effectively an extension of the self.
The plea, filed through advocate Rahul Narayan, claimed that existing laws do not regulate how authorities search or seize digital devices since the power under various statutes extends only to ‘documents’ or ‘things’ or ‘places’, none of which include electronic records.
“Even if it is assumed that the existing legal provisions across general and special laws are applicable in context of the digital realm, going beyond mere production / seizure of devices but to the production/searches of their contents, it is submitted that existing legal provisions, either under the Criminal Procedure Code 1973 or under various special laws, are insufficiently tailored to ensure that law enforcement agencies exercise powers in a manner consistent with the fundamental right to privacy,” the plea said.
The petitioner said that state agencies seek to justify these practices by invoking their powers to compel the production of items, or conduct search and seizure operations during inquiries or investigations and submitted that these practices are contrary to the fundamental right to privacy inherent in Article 21 of the Constitution and other constitutional provisions.
The petitioner urged the top court to declare that the contents of an arrested/accused person’s digital devices and password/passcode/biometric ID thereof are protected by the guarantee against compelled self-incrimination as under Article 20(3) of the Constitution of India.
The Supreme Court is already dealing with another petition filed by former professor of Jawaharlal Nehru University (JNU) Ram Ramaswamy and four other academics who demanded guidelines be framed for investigation agencies regarding search, seizure, examination and preservation of digital and electronic devices and their contents.
Responding to Ramaswamy’s petition through an affidavit in November 2022, the Centre asserted that search and seizure of digital devices during probes “further legitimate state interest” and cannot be said to be violating privacy rights. It added 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, in its November 2022 affidavit, 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 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, 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 that claimed that an attacker used malware to infiltrate Wilson’s laptop.NIA, at the time, dismissed the report as a “distortion of facts”
