Tl;dr
In October 2022, the Foundation for Media Professionals (“FMP”) filed a petition with the Supreme Court, requesting the establishment of regulations concerning law enforcement's authority to search or confiscate electronic devices. The petition underscored the absence of clear legal guidelines governing the process of electronic device searches and seizures. This legal vacuum allows authorities to potentially carry out questionable actions, including compelling individuals to grant access to their mobile devices, regardless of whether there is reasonable suspicion. On November 7, 2023, the Supreme Court directed the Union Government to contemplate analysing the guidelines which would be necessary to regulate indiscriminate search and seizure of digital devices. FMP was represented by Senior Advocate Siddharth Aggarwal. IFF provided legal assistance.
Why should you care?
In recent years, there has been a noticeable increase in incidents in raids being conducted where there is a discernible overreach in powers of search and seizure. There have also been cases where the police stopped individuals on the street and compelled them to surrender their phones. Additionally, law enforcement has been leveraging WhatsApp conversations of those they apprehend to justify their detention. Frequently, these chats are unrelated to the alleged offence, and they sometimes even find their way into the hands of media organizations. Given that mobile devices have become integral extensions of our personal lives, the absence of clear regulations governing their search has allowed the police to access extensive amounts of an individual's private information, infringing upon their right to privacy. This situation is of particular concern for journalists who heavily rely on digital devices for collaboration with sources and whistleblowers. In the wake of this issue, FMP has approached the Supreme Court seeking a resolution.
Proceedings before the Court
On October 18th, 2022, a Supreme Court Bench led by Justice K.M. Joseph issued notice in the petition filed by FMP and tagged it with an ongoing case titled, "Ram Ramaswamy & Ors. v. Union of India & Ors." In the said case, the Union Government had already submitted a response.
Thereafter, on December 5, 2022, a different Supreme Court Bench comprising Justice S.K. Kaul and Justice A.S. Oka heard both FMP's petition as well as Ram Ramaswamy v. Union of India case. Following arguments presented by Senior Advocate Siddharth Aggarwal, representing FMP, the Court observed that FMP's petition covered a broader range of issues. Consequently, the Supreme Court instructed the Union Government to provide a separate response to FMP's petition. The Court also de-tagged FMP's petition from its association with the ongoing case and scheduled it for a hearing in February 2022.
Despite the pleadings being complete in the matter, it was not listed. On October 9, 2023, IFF’s legal team, led by Of-Counsel Vrinda Bhandari, mentioned the matter before the Supreme Court and sought for listing of the same. By way of Order dated October 9, 2023, a Bench headed by Justice S.K. Kaul directed for the petition to be listed on November 7, 2023.
On November 7, 2023, Senior Advocate Siddharth Aggarwal appeared on behalf of FMP, and submitted that there were no guidelines with respect to search and seizure of digital devices. A Bench of Justices S.K. Kaul and Sudhanshu Dhulia noted that the matter was serious and there was a need for better guidelines, especially given the fundamental right to privacy of media professionals. Accordingly, directions have been given to the Union of India to contemplate the issue and return on the next date of hearing, i.e. December 6, 2023.
Summary of FMP’s Petition before the Supreme Court
FMP is an association of journalists that has previously raised important issues which affect journalists before the Supreme Court, such as Sedition, Defamation, and Internet Shutdowns. FMP in the present petition, a copy of which is available here, has argued that:
- The existing legal regime does not regulate the power to search/seize digital devices: The power of law enforcement agencies to compel the production of material by search/seizure is provided under the Code of Criminal Procedure, 1973 (CrPC), as well as various special enactments which derive their basis from CrPC, such as Income Tax Act, 1961, Customs Act, 1962, Competition Act, 2002 and Companies Act, 2013. However, these provisions were enacted to permit the police to search/seize objects in the physical world. The gist of the general existing law is that ‘documents’ or ‘things’ can be provided willingly by persons in response to requests by police to provide the same. Alternatively, law enforcement agencies can intrude into a person’s privacy by carrying out searches of ‘places’ and/or seizing ‘things’ or ‘documents’. While the law requires police to obtain warrants prior to intruding on a person’s privacy, this is subject to broad exceptions. In any case, and crucially, the power extends only to ‘documents’ or ‘things’ or ‘places’, none of which include electronic records.
- Lack of regulation facilitates the violation of the right to privacy: Digital devices are unlike any physical objects as they contain a significant amount of deeply intimate data which could be more revealing about an individual’s life than anything held at a physical place. The lack of specific regulation of search/seizure of digital devices enables law enforcement agencies to use the general law to access mobile devices. As stated above, instances of police stopping people on the street and forcing them to hand over their phones have become frequent. Similarly, it is also common for personal data in the custody of police to find its way to media houses, which liberally use private information to conduct media trials.
- Need for Supreme Court’s intervention: Considering the lack of regulations and the impact it has had on the right to privacy, FMP has approached the Supreme Court asking it to declare that persons should not be compelled to provide their password to law enforcement agencies. FMP also urges the SC to recognise that the legal regime of search and seizure does not cover search, seizure and access to contents of personal devices. FMP has also asked the Court to issue guidelines to fill the lacuna in the existing legal regime until a law is passed by the Parliament. The guidelines should state that:
- Police should obtain a warrant before searching devices. The warrant should not be general, and it should set out the information the police expect to find on the device, with reasonable cause for such expectation.
- Any application for a warrant should demonstrate to the judicial magistrate that it fulfills the proportionality standard, which means that- 1) obtaining evidence should be impossible by other means, and 2) state interests justify the high degree of violation of privacy.
- Law enforcement agencies should be directed to put in place safeguards to ensure that the information they obtain is not leaked. They should also be directed to delete the information they collect once it is no longer necessary and such information should not be shared with other government agencies.
We are grateful to Senior Advocate Siddharth Aggarwal for appearing on behalf of FMP. He was assisted by Advocate-on-Record Rahul Narayan, and IFF’s legal team comprising Advocates Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Radhika Roy, and Gayatri Malhotra. We are also grateful to the Foundation for Media Professionals for allowing us to assist them in such an important matter.
Our ability to engage in significant cases aimed at promoting digital age privacy rights is solely thanks to the support our members and donors offer. Please help sustain our efforts by making a donation or joining as a member.
Important Documents
1. Order dated November 7, 2023 (link)
2. Order dated October 9, 2023 (link)
3. Writ Petition filed by Foundation for Media Professionals. (link)