CBI Manual On Seizure Of Electronic Devices Needs To Be Updated, Says Supreme Court

During the course of the hearing of a plea seeking directions on 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 Bench comprising Justices Sanjay Kishan Kaul and A.S. Oka noted that the CBI must keep up with the changes that are brought about in the criminal manuals in the other jurisdictions in this regard.

Justice Oka remarked, "CBI manual I have seen. It needs a lot of updating."

Similarly, Justice Kaul suggested, "The world has changed, the CBI must also change."

ASG, Mr. SV Raju appearing on behalf of the Union Government, apprised the Bench, "We are open to suggestions."

At the outset, Senior Advocate, Ms. Nitya Ramakrishnan appearing on behalf of the petitioner submitted that the CBI Manual is lying in a sealed cover and is not accessible -

"Any procedure that is meant to protect the citizen cannot be lying in a sealed cover in an office. What the CBI procedure says we don't know…"

She further submitted -

"Other jurisdictions are constantly working and updating their manuals to deal with the challenges to privacy."

The ASG retorted stating that the Manual is available on the internet.

Noting the submission made by the ASG, Justice Kaul reckoned, "If it is publicly available what is the sense in keeping it (in sealed cover)."

Mr. Raju responded, "There is some resistance from the department."

As per the petitioners in the case - former Jawaharlal Nehru University (JNU) professor and researcher, Ram Ramaswamy; Professor at Savitribai Phule Pune University, Sujata Patel; Professor of Cultural Studies at the English and Foreign Languages University, Madhava Prasad; Professor of Modern Indian history at Jamia Millia Islamia, Mukul Kesavan; and theoretical ecological economist Deepak Malghan, the entirely unguided power exercised by investigative agencies to take control of devices that contained a citizen's personal and professional life, require to be civilised by way of directives from the Supreme Court. The petition submits –

"The academic community does and stores its research and writing in the electronic or digital medium, and the threat of damage, distortion, loss or premature exposure of academic or literary work in the event of seizure of electronic devices is considerable."

Now, the Central government of India has filed a reply to the petition. While objecting to the return of personal digital and electronic devices belonging to academics, the Centre has stated that there can be no blanket orders to return seized devices which are under investigation.

As per Centre's affidavit, while the right to privacy is implicit in the concept of individual autonomy and liberty, it is not an absolute right and can be subjected to restrictions based on compelling public interest. The Centre also stated that the vast majority of the apprehensions raised by the petitioners had been noted and can be addressed by adherence to the CBI Manual, 2020. It added that most of the agencies had the procedural SOPs on the subject matter and the CBI Manual dealt with the subject of digital evidence and designed a procedure along with safeguards which were in tune with the statutory and constitutional provisions of the country.

The matter is to be next listed on the regular Board in the week commencing 7th February, 2023.

Senior Advocate, Mr. Siddharth Agarwal appearing in a tagged matter informed the Bench that the scope of his petition filed on behalf of the Foundation For Media Professionals though overlapping with some of the issues in the main petition has much wider implications. The submissions therein are not restricted to the inadequacies of the criminal proceedings, but also extends to those in civil and adjudicatory processes. He implored the Bench to direct the Union Government to file reply in the petition filed by the Foundation For Media Professionals.

Considering that the ambit of challenge is much wider than the main petition, the ASG requested the Bench to de-tag the matter. Accordingly the Bench de-tagged the matter and directed the Union Government to file its response within 8 weeks. The rejoinder was asked to be filed within 4 weeks thereafter.

The petition preferred by the Foundation for Media Professionals, assisted by the Internet Freedom Foundation and filed through Advocate-on-Record, Mr. Rahul Narayan contends that the existing laws do not regulate the police's power to search or seize electronic devices. The lack of regulation enables the police to engage in dubious practices such as mandating individuals, with or without reasonable suspicion, to grant access to mobile devices making clones of those devices and sharing the information they obtain with third parties or governmental agencies. These practices violate the right to privacy and the constitutional guarantee against self-incrimination.

The power of law enforcement agencies to compel the production of material by search / seizure is provided under the Code of Criminal Procedure, 1973 and enactments such Income Tax Act, 1961, Customs Act, 1962, Competition Act, 2002 and Companies Act, 2013. However, these provisions were enacted to permit the police to search / seize objects in the physical world. The gist of the general existing law is that 'documents' or 'things' can be provided willingly by persons in response to requests by police to provide the same. Alternatively, the petition states that the law enforcement agencies can intrude into a person's privacy by carrying out searches of 'places' and / or seizing 'things' or 'documents', which does not include electronic records.

[Case Title: Ram Ramaswamy And Ors. v. UoI And Ors. WP(Crl) No. 138/2021]