SC Issues Notice To Centre On Plea Seeking Guidelines For Police On Seizure, Preservation Of Personal Digital Devices And Their Contents.
The Hon’ble SC on Supreme Court on 26th March 2021, Friday issued notice to the Union of India (hereinafter referred to as “UOI”) for receiving its response in a PIL seeking guidelines concerning seizure, examination, and preservation of personal digital and electronic devices and their contents thereof. The petitioners filed the PIL seeking direction on police and investigative agencies, working under the control of Central and State Governments.
The Hon’ble SC bench, for now, has issued notice to UOI only for receiving its reply in a PIL filed by the petitioners. The Hon’ble bench also stated that before considering whether notices to other respondent parties i.e. States and Union Territories are required to be issued in the matter. Necessary to mention that the notice is returnable in four weeks.
At the outset, the present PIL has been filed before the Hon’ble SC by a group of 5 people 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 so filed by the petitioners majorly emphasizes the aspect of academic freedom as being a part of the right to freedom of speech under Article. 19(1)(a) of the Indian Constitution and also the right to practice a profession or occupation. The petitioners in their petition filed before the Hon’ble court has stated that the “Data that is stored digitally by academics – physical scientists and social scientists may have been collected through extensive fieldwork spanning decades or the results of scientific experiments or calculations similarly representing major effort. If these are tampered with or damaged, the loss to research in the sciences and social sciences are considerable and often irreplaceable. A lifetime’s work is life as much as a livelihood. Patentable material may exist or work that runs the risk of being plagiarised. Work may also be stored in ‘clouds’, compelled exposure of which carries all of the aforesaid risks as much as the seizure of physical devices.”
Subsequently, apart from the academic freedom, the petitioner has also emphasized the right to privacy, right against self-incrimination, protection of privileged communication, the integrity of electronic material, and the return of copies of the seized material to the accused or person under the investigation soon after the investigation is been done.
The petitioner has also laid down certain guidelines in its petition filed before the Hon’ble court and according to the petitioner, the following guidelines can be considered by the Hon’ble Court:
- As far as possible, prior authorization or order from a Judicial Magistrate should be attained before opening, examining, and seizing digital/electronic devices.
- 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.
- In either case, the material or nature of the material sought to be examined or seized, its relevance and link with the offense anticipated or being investigated should be specified with as much clarity as possible.
- 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.
- 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 a copy of the hard drive has to be given to the person whose device it is or to his representative.
- After the 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.
- 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.
Furthermore, the petitioner had placed reliance on the judgment of KS Puttuswamy versus UOI passed by the Hon’ble SC and stated that “It is imperative to now read the provisions of the Criminal Procedure Code, 1973 relating to search & seizure viz. Sections 91-105 & 165-166 under a new explanation offered by the observations in Puttaswamy. In particular, the petitioner remarks that the provisions should be read as a restriction on the fundamental right to privacy, thereby placing the onus on the State to demonstrate the reasonableness thereof.”
Furthermore, the petitioners in its PIL filed before the Hon’ble SC stated that the State should be providing adequate safety measure against the abuse of interference with the exercise of fundamental rights, and “the powers of search & seizure, particularly because they involve 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 protections so that they are not abused.
Therefore, It is authoritative that this Hon’ble Court lays down inviolable guidelines.
Needful to mention that of late, the Karnataka HC had issued a set of guidelines regarding the procedure to be followed for the seizure of data in electronic gadgets, smartphones, laptops, email accounts, etc.