Top court pulls up govt over delay in framing norms on seizure of devices
The Supreme Court questioned the Union government on Wednesday over the delay in framing fresh guidelines on confiscation of devices such as mobile phones and laptops during investigation by law enforcement agencies
NEW DELHI The Supreme Court questioned the Union government on Wednesday over the delay in framing fresh guidelines on confiscation of devices such as mobile phones and laptops during investigation by law enforcement agencies even as the Centre submitted that it has set up a committee to look into the feasibility of such norms.
Appearing before a bench of justices Sanjay Kishan Kaul and Sudhanshu Dhulia, additional solicitor general SV Raju submitted that he is “positive” that the committee will propose certain guidelines that he would adduce before the bench on the next date of hearing.
But the bench retorted: “When did we issue notice? Some time frame has to be followed. Two years have passed, Mr Raju!”
Responding, the ASG said: “We are positive that there will be some guidelines. It’s just that over the last 10 days, I have been unwell. They may give their suggestions. We will consider them and come up with something.”
Even as the bench took note of the ASG’s statement, it pointed out that the matter had been pending since 2021, asking for a specific timeline for the guidelines.
Raju replied that the matter could be fixed for a hearing again next week when he would inform the bench about the status of the guidelines. The ASG added that he would try to expedite the process before the committee. Accepting his submissions, the bench fixed the next hearing on December 14.
During the brief hearing, senior advocate Nitya Ramakrishnan pointed out that the suggestions from both sides were already on record and, hence, there should not be any delay by the committee on such grounds.
Expressing her reservations on the Centre’s request for more time, she said: “At least 300 devices have been seized from 90 journalists following the NewsClick case. They have been stymied. They cannot work... It’s an assault on press freedom and academic freedom. They want to continue doing this, which is why the delay.”
On the merits of the case, she added: “Invariably, there must be a warrant. Second, the expanse of information on digital devices is such, the State should not access everything but only whatever is absolutely required. I have explained what the position is in the United States, in the United Kingdom, and elsewhere.”
Responding, justice Kaul remarked: “For a change, they (government) have said ‘next week’. Let it come.”
As the ASG assured the bench that he would push for expedition of the committee’s work, the judge quipped: “There is an old saying – Umeed par duniya kayam hai (the world is built on hope).”
The bench was hearing a batch of three connected petitions, seeking regulation of the powers of investigating agencies to search and seize digital devices. The first writ petition was filed by former professor of Jawaharlal Nehru University (JNU) Ram Ramaswamy and four other academics in 2021, demanding guidelines be framed for investigation agencies regarding search, seizure, examination and preservation of digital and electronic devices and their contents. The other petitions have been filed by the Foundation for Media Professionals (FMP) and Amazon Seller Services Private Ltd.
During the hearing of this case on November 7, the bench commented that unchecked powers with investigating agencies to search and seize digital devices is not only “very, very dangerous” but also impacts the privacy of individuals.
Imploring the Union government to come up with guidelines on confiscation of devices within four weeks, the court had on the day said 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 Raju on November 7 even as the ASG 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... This is not adversarial,” it told the ASG.
Responding to Ramaswamy’s petition through an affidavit in November 2022, the Centre had asserted that search and seizure of digital devices during probe “further legitimate state interest” and cannot be said to be violating privacy rights. It had 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 the 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 seek either cloned images of the hard drives of devices that have been seized or return of the devices.
The issue of seizure of digital devices 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”.