The court was hearing public interest litigation filed by renowned academics Ram Ramaswamy, Sujata Patel, M. Madhava Prasad, Mukul Kesavan and Deepak Malghan seeking guidelines for the search and seizure of digital devices by law enforcement agencies.
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ON Thursday, the Union government told the Supreme Court that it was still deliberating over guidelines governing the search and seizure of phones or other digital devices belonging to media personnel and academics.
The submission was made by Additional Solicitor General (ASG) S.V. Raju before a Bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia. The Bench granted the government six weeks to develop the guidelines.
The Bench also recorded the assurance given by the ASG that in the meantime, the Central Bureau of Investigation (CBI) manual will be followed by all Union government agencies in making search and seizure.
The Bench was hearing public interest litigation (PIL) filed by renowned academics Ram Ramaswamy, Sujata Patel, M. Madhava Prasad, Mukul Kesavan and Deepak Malghan seeking guidelines to be put in place for the search and seizure of digital devices by law enforcement agencies. The Bench was also hearing a similar petition filed by the Foundation for Media Professionals.
As per the CBI manual, an investigation officer should seize or requisition records only if the same are essential for the purpose of the investigation.
In many cases, examination and scrutiny of the records on the spot might suffice. Where it is not possible to take any records or documents immediately into possession, adequate precautions should be taken and arrangements made to preclude the possibility of any interpolation in or tampering with such records or documents.
The following measures are provided in the CBI manual to prevent delay in the investigation of cases:
(a) As far as possible, the places to be searched and documents and articles required to be recovered during the searches pertaining to allegations in the case should be identified and confirmed at the pre-registration stage itself.
(b) As soon as the case is registered, a detailed plan of investigation should be prepared by the investigation officer, in consultation with the head of the branch and law officer of the branch, which inter alia must include searches to be conducted, arrests to be made, if any, documents to be collected and witnesses to be examined, etc., along with a tentative timeline for completion of each task.
(c) As soon as the documents are obtained, the head of the branch should fix a target date for their scrutiny and submission of the scrutiny report by the investigation officer. Urgent investigations, which may be required to be done even during the scrutiny of documents, should also be completed by the investigation officer in the meantime. Similarly, investigation should be carried out on the working copy of the seized digital material. The head of the branch should ensure that mirror images of such digital items are prepared at the time of seizure itself.
Initially, the Union government, in its affidavit, had contended that the PIL was not maintainable for being vague and based on surmises, and not being founded on any actual instances of violation of constitutional rights of the petitioners or any other member of the academic community in the country.
It further averred that the pleadings are entirely based on apprehensions that the work of academics may not be protected upon potential seizure by law enforcement authorities.
The Bench had, however, directed the government to file a detailed affidavit and come up with guidelines.
The petition by the academics contended that there were no specific and binding norms in place to guide the exercise of such power, and no procedure in any law or even in most police manuals that was appropriate to the recovery of electronic or digital material, which was distinct from the recovery of any other kind of material.
“They contain an entire professional and personal world, most of which is of no concern to any investigation. Data is amenable to easy change and to remote tampering.
“Yet, in the course of investigation, digital devices such as laptops and phones are seized simply as material objects, and the many matters of professional and personal importance they contain are compromised at the hands of State agencies,” the plea stated.
The plea urged the court to consider the following safeguards: requirement of a prior warrant from a magistrate except in cases of utmost urgency and in either case, recording of the nature of material sought and its necessity to the investigation; passwords or unlocking of devices in cases of biometric encryption should not be compelled; noting of hash value in the seizure memo; ideally, a copy of hard drive should be taken, not the original, else the copy must be given to the owner or representative at the time of seizure; examination of device in owner or representative’s presence; removal of material irrelevant to investigation from the investigator’s copy, among other measures thought fit and proper.
It added that the entirely unguided power exercised by investigative agencies to take control of personal digital devices that contain much, if not all, of a citizen’s personal and professional life, requires to be civilised by way of directives from the court.
The plea went on to say that there is no procedural mechanism to sift the contents of devices and protect that which is irrelevant to an investigation, but important to the owner of the device.
“Suitable measures need to be evolved in light of the nine-judge Bench decision in Justice (Retd.) KS Puttaswamy versus Union of India,” the plea said.
It thus sought directions from the court to the effect that search and seizure done by investigative agencies of digital devices is by a procedure that safeguards: (i) the right to privacy, (ii) the right against self-incrimination, (iii) the need for the State to demonstrate necessity and proportionality in respect of its action impacting those rights, (iv) privileged communication and material, (v) confidentiality of professional work, (vi) return of seized material so as to not hamper professional work, and (vii) integrity of digital evidence during and post-search and seizure.
Senior advocate Nitya Ramakrishnan, assisted by advocate Prasanna S., appeared for the petitioners.
