The government in the Supreme Court on Wednesday remained ambiguous about framing guidelines for investigating agencies to follow during the seizure of electronic evidence from personal devices, including mobile phones and computers, especially of the academia and mediapersons.
A Bench headed by Justice Sanjay Kishan Kaul said the government had been sitting on the issue of framing the guidelines for nearly two years.
“When will you come up with your guidelines,” Justice Kaul asked Additional Solicitor General S.V. Raju, for the government.
Mr. Raju said a “committee” was working on the issue and he would get instructions by next week. He had been unwell and was not able to keep tabs on the progress made, Mr. Raju said.
The court posted the case for December 14.
Senior advocate Nitya Ramakrishnan and advocate Prasanna S. appeared for petitioners, Professors Ram Ramaswamy, Sujata Patel, M. Madhava Prasad, Mukul Kesavan and Deepak Malghan.
Ms. Ramakrishnan said personal electronic devices could not be seized and kept in the custody of probe agencies indefinitely. At most, they could take copies of the material or content in the devices. The lawyer along with senior advocate Siddharth Agarwal said they had separately given their suggestions for the proposed guidelines.
‘300 devices seized from 90 journalists’
“This is an immediate issue. Some 300 devices have been seized from around 90 journalists… How will you feel if someone comes to your house and seizes and reads your letters… This is a complete assault on journalistic freedom,” Ms. Ramakrishnan argued.
The academicians have contended that the seizure of their personal digital devices amounted to a violation of their right to privacy and they run the risk of losing their life’s work when police carry off their computers and drives after a raid.
The case resonates issues raised by recent Delhi Police raids on journalists and activists in the NewsClick case.
Pegasus case
“Members of a civilised democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom,” the Supreme Court had held in its judgment in the Pegasus case in October 2021.
Recently, 16 media collectives had written to the Chief Justice of India, urging judicial intervention to frame norms against the seizure of laptops and mobile phones of journalists on a whim.
In a recent hearing in the Ram Ramaswamy case, Justice Kaul had remarked that academicians had a right to protect their work.
“Today people live on this [personal devices],” Justice Kaul had observed orally.
MHA affidavit
The Ministry of Home Affairs said in its affidavit had said that while laptops, computers and mobiles were commonly used in contemporary society, criminals also “use these devices in the facilitation of their unlawful activities”.
“Today, virtually every crime has an electronic component in terms of computers and electronic technology being used to facilitate the crime,” the Ministry had said.
It contended that these devices may contain a host of electronic evidence related to the crime under investigation, whether it was a conventional crime or a terrorist act. Technology allows crimes to be committed remotely with near anonymity on targets which are borderless. Devices were seized “simply as material evidence related to an offence”.
“No one can be treated above the law. An accused cannot claim the right to privacy when computers, tablets, laptops, mobile phones, etc, especially when it is used for committing crime or has vital information related to a crime under investigation… Digital devices have to be examined thoroughly by forensic experts,” the Ministry had said.
