Be it the searches at NewsClick, BBC, the Wire, or at the homes of journalists in several states over the last few years, the seizures of journalist’s digital devices have often underlined two issues – pertaining to journalistic privilege and the fundamental right to privacy.
This was what the Supreme Court also hinted at on Tuesday, when it expressed concern over the “arbitrary seizure” of digital devices, calling it “very dangerous” and asking the Centre to frame guidelines to govern such actions by agencies. While the court was hearing a petition seeking such guidelines by the Foundation for Media Professionals, 18 journalist bodies had made similar demands in a letter to the Chief Justice of India last month.
Newslaundry spoke to several journalists and writers whose phones have been seized in the past to understand what could be arbitrary about such seizures, and the toll it could take on the personal and professional lives of media professionals.
‘Quality of shows’ to ‘incomplete book’
After the police reportedly seized 250 digital devices during searches at premises linked to around 90 individuals, including those tangentially associated with NewsClick, last month, a reporter said “all the contacts and sources that I have built over the years” were lost.
“The stories that used to take me four to five hours to write are now taking around two days as I have to ask around for numbers or reach out to people through social media platforms. I usually do at least 20 articles a month, now I have just done four to five. The quality of my stories is lost. This has also put me in a very different state of mind,” said the reporter, whose two phones and a laptop were seized.
The reporter asked “around a lot to borrow a laptop but nobody seemed to have a spare one”. “They have paralysed our work. It will take a long time to rebuild it now, personally and for the organisation.”
Abhisar Sharma, a regular contributor to NewsClick, said his two phones and laptop were seized.
“I use phones to record and produce three shows per day. I had to purchase two new phones after the raid and I am using my daughter’s laptop,” he said. “I did not buy high-end phones now as there is the fear of what if they raid us again. The quality of my shows is suffering because of this. There are also half-written articles on my laptop – but now all of that is gone.”
The main concern, Sharma said, were the pictures on his phone. “There are so many personal photos on my phone – of trips with my family, pictures of my young daughter posing on a beach. Taking all this away without knowing when it will be returned is a sense of violation. This is all just brazen because they did not give us any challan or hash value for the devices.”
The Information Technology Act of 2000 lays down that the hash value of confiscated electronic evidence must be taken before it’s sent for forensic analysis to ensure that it’s not tampered with. The hash value is unique, much like a fingerprint. It changes if, say, a document or file is planted on the device, allowing the owner to find out if it has been tampered with. But in the case of both NewsClick and the Wire, journalists said they were not provided with hash values.
Veteran journalist and author Urmilesh, whose phone and laptop were seized when his house was raided during the NewsClick searches, said his laptop had many pages of research notes for two upcoming books he was writing. He said his weekly show has also been delayed as he used to make his news videos through his phone – he now has to use his wife’s phone.
“My laptop has been with me for 15 years, I have all kinds of research notes and manuscripts on them,” he said. “I have stored several passwords of different things on my phone. It is very hard to function now without it. I couldn't even log in to Facebook or anything as the OTP would go to the phone.”
Writer and comedian Sanjay Rajoura was also among those whose homes were searched during the raids on NewsClick on October 3. Rajoura, who used to freelance for the embattled outfit over a year ago, saw his phone and laptop being seized.
“I had a prescription on the phone from my psychiatrist that I have not been able to access. These are prescription medicines so I have not been able to get them without the prescription that’s on the phone,” he said. “All my contacts are on the phone as well, so I haven't been able to get in touch with the psychiatrist either. It has affected my mental health and I have been unable to sleep.”
Rajoura said that his work projects were also suffering. “I had to submit a movie script by October 10 but I was unable to do so without the laptop. There were also two to three drafts of articles I was writing that I haven’t been able to complete as they are on the laptop.”
Financial burden
In November last year, during police searches at the Wire’s offices and residents of its staff in Delhi and Mumbai, 18 devices were seized. These belonged to the three founding editors, the deputy editor, a reporter, the head of business, and the accounts department.
The Delhi police had also asked some of the staffers to remove the passcodes from their devices and to provide passwords to their work and personal accounts.
The Wire team got their devices back only last week.
A Delhi court had ordered the release of their electronic devices, but the police appealed against this order. This appeal, however, was dismissed by a sessions court, which upheld that “the press is considered the fourth pillar of our great democracy,” and that if it is not allowed to function and operate independently, it would cause “serious injury to the foundations of our democracy”.
“For the first few weeks after our devices were seized, we borrowed devices from family and friends,” Siddharth Varadarajan, the founder of the Wire, told Newslaundry. “When something like this happens for the first time, you never know how long it will take. We were told we’ll get the devices back soon but after a couple of months passed, we realised it’s going to take a while. All of us had to buy new phones and computers. For a small organisation such as ours, it has been a big financial burden, and also a huge inconvenience.”
The legal position
During the hearing in the Supreme Court on Tuesday, the Foundation for Media Professionals’ lawyer told the bench of Justices S K Kaul and Sudhanshu Dhulia that there were hundreds of journalists whose devices had been taken away en masse without any guidelines or protection of data.
The court is seized of a similar petition. In the absence of a response from the Centre, it had imposed a Rs 25,000 fine.
While there is no law in India that protects journalists from being forced to give their phones or disclose their sources, there have been court orders that have upheld the importance of a journalist’s device. In July this year, the Kerala High Court said that the phone of a journalist cannot be seized by the police in connection with a case without following the due procedure.
In November 2022, a Delhi court held that an investigating agency has no right to seek the password of the electronic device of an accused without their consent.
But provisions in the law may give agencies sweeping powers, as pointed out during the Supreme Court hearing on Tuesday. While the right to privacy is fundamental, journalists do not have any immunity against the seizure of their digital devices.
For example, under Section 165 of the CrPc, if there are reasonable grounds, the police have the power to search devices during a probe. Section 102 also gives police the power to seize any property “which may be found under circumstances which create suspicion of the commission of the offence”.
The Bhima Koregaon case is another prominent example in which activists have alleged violation of due process.
In September, the NIA court told the agency to submit an affidavit affirming that it had provided cloned copies of all electronic devices seized to the persons accused in the Bhima Koregaon case. This came months after American digital forensic firm Arsenal Consulting claimed that evidence was planted on devices belonging to the accused in the case.
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