Committee Constituted To Frame Guidelines For Seizure Of Digital Devices : Centre Tells Supreme Court

On the last occasion, Senior Advocate Siddharth Agarwal, appearing for the petitioner, attempted to underscore the seriousness of the issues raised in the petition and the threats that law enforcement agency's unmitigated search and seizure powers posed to constitutional guarantees. In response, Additional Solicitor-General SV Raju insisted that there were provisions, which, among other things, allowed a person whose digital devices have been seized to back up their data. The court, however, expressed concerns over the arbitrary seizure of media professionals' digital devices and stressed the need for better guidelines to protect their interests. Justice Kaul said, "I'm finding it very difficult to accept some kind of all-within power that the agencies have...This is very dangerous. You must have better guidelines."

Two days after the top court expressed its concerns over arbitrary seizures, in a related development, it heard another public interest litigation petition filed by five academicians seeking seeking guidelines for the seizure of personal electronic devices by investigating agencies. In this case, the academicians drafted a set of guidelines and submitted them to the court, which then asked Senior Advocate Nithya Ramakrishnan to circulate the guideines to the union and state governments. 

The hearing today was adjourned on the additional solicitor-general's request. Seeking more time to come up with the guidelines as directed by the court on the last occasion, the law officer told the bench, "We are positive that there will be some guidelines. It's just that over the last ten days, I have been unwell. They may give their suggestions, we'll consider them and come up with something."

Disapproving, the bench called for a timeframe to be followed, especially in view of notice being issued in one of the cases in 2021. "Two years have passed, Mr Raju!" Justice Kaul exclaimed. 

"You may keep it next week. A committee has been constituted, I'll try to expedite the process," ASG Raju assured the bench, which agreed to eventually adjourn the hearing until December 14. On Ramakrishnan's insistence, it also observed in its order that suggestions from both sides were already on record. She told the court today, "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."

The senior counsel also expressed her reservations about the union government's request for more time, saying, "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..."

Responding to this, Justice Kaul said, "For a change, they have said next week."

When ASG Raju once again provided assurance that he would push for the process of formulating guidelines to be expedited, the judge said, "There's an old phraseology in Hindi...Umeed pe duniya kayam hain."

Background

The Foundation for Media Professionals, a society of journalists, has highlighted the increasing reliance on personal digital devices by its members for their journalistic work, which often involves handling “confidential information of public value, private correspondence with sources and whistle-blowers, and remote collaboration to break news stories in the public interest”. Therefore, the society, it has been argued, has a specific interest in advocating for adequate legal safeguards for the right to privacy in the digital space.

In its writ petition, the foundation has underscored the inadequacy of existing laws, originally designed for physical searches and seizures, to address the complex challenges posed by digital spaces. These provisions in various legislative enactments regulating the power of law enforcement agencies to compel the production of materials derive their basis from the erstwhile criminal procedure codes that were enacted “in a legal framework where the notion of limited government did not exist”. The petition states –

“In the modern world of limited government based on constitutionalism, where personal digital devices have become extensions of themselves, and where such devices contain vast amounts of personal and intimate data, existing legal safeguards are insufficient to adequately protect an individual's constitutional rights. Because of this, there is – in effect – a legal vacuum when it comes to the balance between the right to privacy in the digital space and the legitimate interests of law enforcement agencies. This legal vacuum has facilitated ongoing and continuing police practices of dubious constitutionality, such as cordon searches, roving and fishing demands for accessing mobile devices and making 'clone' copies of their complete contents, and compelling arrested persons and potential witnesses to unlock their mobile phones.”

The situation, the foundation has argued, has been further complicated by a 2021 Karnataka High Court judgment issuing guidelines for investigating officers to carry out searches and for the preservation of the evidence gathered during the process in respect of smartphones, electronic equipment, or email accounts. This judgment, the petition states is “erroneous, and misinterprets the constitutional guarantee against self-incrimination”.

The foundation has also raised concerns over the 'unsettling trend' of law enforcement agencies conducting intrusive searches and seizures of personal digital devices, leading to a chilling effect on the exercise of constitutional freedoms, particularly within the journalist community –

“A legal possibility for being compelled to hand over one's digital devices which contain a trove of not only sensitive personal data but also sensitive and confidential professional information such as the details of informants, sources, financial data, without these having any nexus between purported law enforcement interests, casts a serious and indelible chilling effect across society generally, and the journalist community more specifically which has been rendered unable to fully exercise its basic constitutional freedom of speech and exercising one's profession.”

Pointing to previous instances of judicial intervention in view of legislative insufficiencies threatening constitutional rights, such as when the Supreme Court issued its famous Vishaka guidelines on sexual harassment, the foundation has urged the court to issue guidelines to strike a balance between the right to privacy in the digital space and the legitimate interests of law enforcement, in line with established judgments. While doing so, the petitioner has raised several critical questions for the court's consideration, including the circumstances under which searches and seizures of personal digital devices can be conducted, the protection of an individual's right against self-incrimination in the digital domain, measures to prevent the misuse and leakage of collected data, and the deployment of the principle of proportionality in safeguarding privacy rights.

Case Details

Foundation for Media Professionals v. Union of India & Ors. | Writ Petition (Criminal) No. 395 of 2022