Plea For Guidelines On Seizure Of Electronic Devices : Supreme Court Not Satisfied With Centre's Counter-Affidavit; Seeks Better Response

The Supreme Court on Friday expressed dissatisfaction with the counter-affidavit filed by the Union Government in response to a writ petition which seeks guidelines for the seizure of personal electronic devices by investigating agencies.

"We are not satisfied with the counter and we seek a new and proper reply", a bench comprising Justices Sanjay Kishan Kaul and MM Sundresh observed in the order. The bench said that the Centre should also refer to the international practices in this regard.

The matter will be heard next on September 26.

Justice Sanjay Kaul orally observed that it is not enough for the Centre to say that the petition is not maintainable, as has been stated in the counter-affidavit filed at present.

Justice Sundresh orally said that the devices have the personal contents of people which need to be protected.

Additional Solicitor General SV Raju said that the Centre will re-examine the matter.

The bench was hearing a PIL filed by 5 people academicians, namely Ram Ramaswamy (retired JNU Professor), Sujata Patel (Distinguished Professor at Savitribai Phule Pune University), M Madhava Prasad (Professor of Cultural Studies at English and Foreign Languages University, Hyderabad), Mukul Kesavan (Delhi based writer) and Deepak Malghan (theoretical ecological economist).

The PIL sought directions to police and investigative agencies, working under the control of Central and State Governments for specifying guidelines with regards to seizure, examination and preservation of personal digital and electronic devices and their contents thereof.

The petition filed through Advocate S Prasanna focuses on the right to privacy, right against self incrimination, protection of privileged communication, integrity of electronic material and the return of copies of seized material to the accused or person under the investigation.

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According to the petition, the following guidelines can be considered by the Court:

1. As far as possible, prior permission or order from a Judicial Magistrate should be attained before opening, examining and seizing digital/electronic devices .

2. In case the seizure is urgent, the reasons for not seeking prior permission or orders should be recorded in writing and served upon the owner of the device

3. In either case, the material or nature of the material sought to be examined or seized, its relevance and link with the offence anticipated or being investigated should be specified with as much clarity as possible

4. The owner of the device should not be compelled to reveal his passwords, and in case of biometric encryption, should not be forced to unlock his devices.

5. At the time of seizure, the hash value should be noted and ideally, a copy of the hard drive should be taken, and not the original, else copy of the hard drive has to be given to the person whose device it is or to his representative

6. After seizure, the hard disk should be examined in the presence of the person whose device it is or from whom it was seized, as also a neutral computer professional.

7. Material, mails and other data, agreed to by all sides as irrelevant to the crime under investigation, should be removed from the investigator's copy in the presence of the representative of the accused and the independent professional and a renewed hash value should be recorded in a memo drawing up such proceedings.

Stating that the State should be providing sufficient safeguards against the abuse of interference with the exercise of fundamental rights, the petition states:

"The powers of search & seizure, particularly because they engage fundamental rights such as the right to privacy, the right against self-incrimination, and the right of protection of privileged communication, ought to be therefore read and supplied with adequate safeguards such that they are not abused to defeat such rights. It is imperative that this Hon'ble Court lays down inviolable guidelines therefore."

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Case Title : Ram Ramaswamy and others versus Union of India, WP(crl) 138/2021