SC calls for protection of personal data on devices seized by agencies
Personal information stored on mobile phones and laptops seized by investigating agencies must be protected, observed the Supreme Court on Friday, as it sought the Centre’s stand by next month on a plea seeking suitable guidelines with respect to seizure, examination and preservation of personal digital and electronic devices and their content.
The top court also expressed dissatisfaction over the Centre’s response to the plea last year that no accused can claim right to privacy in respect of such devices.
“All that is stored in these devices is personal information. People live on these devices. They have a right to protect it,” a bench of justices Sanjay Kishan Kaul and MM Sundresh said.
The court was hearing a public interest litigation (PIL) filed in March 2021by former Jawaharlal Nehru University (JNU) professor Ram Ramaswamy and four other academicians, who sought framing of guidelines for investigation agencies regarding search, seizure, examination and preservation of digital and electronic devices and their content.
In its response in an affidavit in November last year, the ministry of home affairs (MHA) said the evidence for any given crime in the contemporary world is largely stored in mobile phones, laptops, tablets and similar electronic devices and no accused can claim the right to privacy in respect of such devices.
“When the digital device is searched and seized, the investigation officer cannot separate the chaff from the grain… No one can be treated above the law. An accused cannot claim right to privacy in respect of his digital devices like computer, laptop, tablets, mobile phones, etc, especially when it is used for committing the crime or has vital information or evidence related to crime under investigation,” the affidavit said.HT has seen a copy of the affidavit.
The top court, however, was not satisfied with the Centre’s response in the affidavit. “By saying that this petition is not maintainable is not enough. You (Centre) look into the material they have provided along with international conventions and take a proper stand at the appropriate level. An officer of this level (MHA deputy secretary who filed the affidavit) cannot look into this issue,” the bench said on Friday.
The Court sought a response in six weeks and fixed September 26 as the next date of hearing.
Additional solicitor general (ASG) SV Raju assured the Court that the Centre will take a relook at the case.
Raju also said that digital evidence is seized as per procedure provided under Code of Criminal Procedure and Information and Technology Act, 2000, and claimed the entire petition was based on apprehensions as it had nothing to prove that the fundamental rights of petitioners had been breached in any manner.
He also said that since “police” and “public order” are state subjects, notices must be issued to states for their response on the matter.
The bench, however, said the purpose behind looking into the petition was to understand the Centre’s stance and not call all states for its views in the case.
Appearing for the petitioners, senior advocate Nitya Ramakrishnan and advocate S Prasanna said electronic devices of several academicians and authors of repute have been seized in the recent past under the guise of investigation.
“In the course of investigation, digital devices such as laptops and phones are seized simply as material objects, and the many matters of professional and personal importance they contain are compromised at the hands of state agencies,” the petition said.
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“Additionally, data/information in cloud-based storage is elicited by compelled divulgence of passwords. Norms specific to the nature of digital and electronic material are therefore needed to regulate their search and seizure,” it added.
The petitioners also referred to a question raised in Parliament in August last year on reported seizure of electronic devices during investigations and whether any guidelines exist to regulate such seizures.
In response, the Centre informed Parliament that it does not maintain any such data as criminal investigation and prosecution rests with the respective state governments. On the issue of guidelines, the Centre referred to this pending petition before the top court.
The top court had issued notice to the Centre on March 26 last year. Besides Ramaswamy, Sujata Patel, M Madhava Prasad, Mukul Kesavan and Deepak Malghan are the petitioners in the case.