Guidelines On Seizure Of Digital Devices : Supreme Court Issues Notice On Foundation For Media Professionals' Petition

While issuing notice, a Bench of Justices KM Joseph and Hrishikesh Roy asked the Union to respond and tagged the matter with a pending petition which sought from similar prayers with the present plea.

Senior Advocate Siddharth Aggarwal appearing for the petitioners told the court that our electronic devices, more often than not, have personal sensitive data, political views, financial information.

"Is there an existing regulation, the answer is no. These agencies have unlimited power. There's also interdepartmental sharing of information", the counsel said.

"There are so many conversations in Whatsapp, with different people, different relations. Picking up one stray chat may not be…", the Bench also pointed out.

The petition moved by the Foundation for Media Professionals, assisted by the Internet Freedom Foundation, 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.

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"Compelling arrested persons to divulge passcodes of a digital device in order to gain real-tile access to every facet of her life, in a manner wholly contrary to Article 20 (3) and 21 of the Constitution, has become the norm of investigations."

This material that is accessed by the investigation agencies also finds its way into the hands of media agencies, which causes irrevocable damage to one's reputation, the petition further states.

Digital devices, in today's age, is an extension of self. However, when it comes to search and seizure, the existing legal provisions, either in the Code of Criminal Procedure, 1973, or under the various special laws are insufficiently tailored to ensure that law enforcement agencies exercise powers in a manner consistent with the fundamental right to privacy, the plea adds.

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.

Till appropriate guidelines are framed, the petition has sought for the following reliefs:

- The Law enforcement agencies should obtain a warrant before searching devices. The warrant should not be general, and it should set out the information the police expect to find on the device, with reasonable cause for such expectation. If there isn't a warrant, the search should be deemed as unconstitutional.

- Any application for a warrant should demonstrate to the judicial magistrate that it fulfils the proportionality standard under Article 21, which means that- 1) obtaining evidence should be impossible by other means; and 2) state interests justify the highest degree of violation of privacy.

- Law enforcement agencies should be directed to put in place safeguards to ensure that the information they obtain is not leaked and that it's deleted once no longer necessary for the investigation. Further, information should not be shared with other government agencies.

Notably, the Supreme Court, in August, had expressed dissatisfaction with the counter-affidavit filed by the Union Government in response to another writ petition which sought 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 had observed in the order. The bench said that the Centre should also refer to the international practices in this regard.

Case Title: Pil-W Foundation For Media Professionals Versus Union Of India And Ors | : W.P.(Crl.) No. 395/2022

Click Here To Read/Download Order