Syllabus: GS Paper 2 – Important Aspects of Governance, Transparency and Accountability, Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.
Context: The Supreme Court has instructed the Union government to establish guidelines aimed at safeguarding the interests of media professionals in relation to the confiscation of their digital devices.
Source: The Hindu | Editorial dated 16 November 2023
The petition
- The Foundation for Media Professionals (FMP) filed a petition under Article 32, urging the Supreme Court to address the pressing issue of regulating the search and seizure of digital devices in India.
- The existing legal framework across penal statutes is deemed insufficient to effectively address the unique aspects of digital devices, as emphasized by the petitioners.
- FMP contends that digital devices, serving as repositories for private conversations and personal data, are essentially extensions of an individual’s identity.
- The absence of regulation exposes individuals to unwarranted data collection by law enforcement, thereby violating the right to privacy outlined in Article 21.
- The petition argues that unregulated searches of personal information on digital devices can potentially result in self-incrimination, violating Article 20 of the Constitution, which safeguards individuals from being compelled to testify against themselves.
Rights in Question
- Article 21 – Right to Privacy:
- The landmark 2017 Puttaswamy judgment acknowledges that privacy is a fundamental right under article 21 of the constitution, which deserves special protection in the digital age.
- The absence of regulations exposes individuals to unwarranted data collection by law enforcement, constituting a breach of the right to privacy under Article 21.
- Article 20 – Right against self-incrimination:
- Unregulated searches of personal information on digital devices have the potential to induce self-incrimination.
- This violates Article 20 of the Constitution, safeguarding individuals from being compelled to testify against themselves.
Global Context: Search and Seizure Protocols in the UK and the US
- Strict Conditions and protocols Governing Searches:
- In the UK and the US, all search and seizure activities, including those involving electronic devices, are subject to stringent conditions.
- Additional protocols specifically address the handling and treatment of electronic devices during search and seizure operations.
- In both the UK and the US, searching without a judicial warrant is considered an exception rather than the rule, ensuring a legal basis for such actions.
- Privacy Protection Act in the US:
- The US has the Privacy Protection Act, which prohibits the search or seizure of materials belonging to individuals engaged in First Amendment activities.
- First Amendment activities, such as those related to freedom of expression by journalists, artists, academics, and researchers, are considered protected. Materials from these activities are exempt from search as potential evidence.
An example
- Five academics who previously petitioned the Supreme Court for guidelines on the seizure of personal digital devices by investigating agencies.
- They have now submitted their own draft guidelines to the court.
- The guidelines include:
- Specificity in seeking information from an electronic device, with reasons, to be documented in writing and reflected in a judicial warrant.Written record detailing the purpose of seizure served on the device owner before any enforcement action.Prohibition on summoning individuals by the police to produce their devices.Search authorized by a warrant is the norm, with emergency search and seizure considered an exception requiring written justification.Independent examination of the seized device in the presence of the owner/agent, with identification and protection of privileged, personal, and irrelevant material.Only material directly relevant to the investigation to be taken, with three copies made and hash value noted at each stage.Removal of irrelevant information before investigators take possession of the device, with a memo indicating date and place of return made during the search.Return of the device within 30 days of seizure.Prohibition on compelled disclosure of passwords unless expressly allowed by statute.
- Material seized in violation of guidelines cannot be used in any court or manner, and these conditions are non-negotiable.
The Supreme Court Intervention
- PIL filed by the Foundation for Media Professionals prompts the court to address concerns of unreasonable interference by law enforcement agencies.
- Supreme Court emphasizes the need for guidelines governing search and seizure of phones and digital devices, especially those belonging to media professionals.
- Justices Sanjay KishanKaul and Sudhanshu Dhulia highlight the potential presence of confidential information or details about sources on media professionals’ devices.
- The court is urged to establish safeguards and comprehensive guidelines for the search and seizure of digital devices.
Need for Guidelines on Search and Seizure of Digital Devices
- Increased Attacks on Journalists:
- Personal attacks on journalists have risen in recent years, particularly under terror laws like the Unlawful Activities (Prevention) Act, 1967.
- These laws, criticized for their broad and arbitrary scope, contribute to the vulnerability of journalists.
- Concerns Over Arbitrary Actions:
- The arrest of journalists from Newsclick and the subsequent seizure of their devices highlighted arbitrary actions by investigative agencies.
- Such incidents create a “chilling effect” on free speech and are viewed as violations of the freedom of the press.
- Lack of Clear Guidelines:
- Currently, there is a lack of clear and coherent guidelines for the search and seizure of digital devices in these situations.
- This absence gives investigative agencies wide discretion to arrest, detain, and seize individuals and their devices without defined boundaries.
- Protection of Privacy and Sources:
- The absence of regulations poses a threat to the privacy and protection of journalistic sources.
- Guidelines are crucial to ensuring that investigative actions do not infringe upon the privacy of individuals and compromise the confidentiality of journalistic sources.
- Safeguarding Freedom of Speech and Expression:
- Without established guidelines, there is a risk of arbitrary curtailment of the freedom of speech and expression.
- Regulation for search and seizure is essential to strike a balance between investigative actions and the protection of fundamental rights.
- Ensuring Accountability and Transparency:
- Guidelines provide a framework for accountability and transparency in the actions of investigative agencies.
- Clear regulations prevent abuse of power and help maintain public trust in the functioning of law enforcement.
- Addressing “Chilling Effect”:
- Guidelines serve to address the perceived “chilling effect” on free speech resulting from arbitrary actions by investigative agencies.
- A well-defined framework promotes a conducive environment for open discourse and journalistic freedom.
- Legal Certainty for Individuals:
- Establishing guidelines offers legal certainty to individuals, outlining their rights and protections during search and seizure procedures.
- Clarity in procedures reduces the likelihood of unwarranted legal actions against journalists and other individuals.
- Preserving the Integrity of Journalism:
- Guidelines contribute to preserving the integrity of journalism by ensuring that investigative actions are conducted within legal and ethical boundaries.
- This fosters a robust and independent media environment.