The Supreme Court of India has expressed its concerns over the delay in framing guidelines for the search and seizure of personal digital devices by law enforcement agencies. This issue, which has significant implications for privacy and freedom of expression, especially among journalists and academicians, has been a topic of intense debate and legal scrutiny.
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The court’s attention was drawn to this matter through two public interest litigation (PIL) petitions. The first, filed by the Foundation for Media Professionals, sought guidelines for the seizure of digital devices. The second, filed by a group of five academicians and researchers, contended that investigating agencies were exercising unbridled powers in seizing digital devices, which contain extensive personal and professional information of citizens.
During the hearing, Senior Advocate Siddharth Agarwal, representing the petitioner, emphasized the seriousness of the issues raised in the petition. He pointed out the threats posed by law enforcement agencies’ unmitigated search and seizure powers to constitutional guarantees. In response, Additional Solicitor-General SV Raju insisted that there were provisions allowing a person whose digital devices have been seized to back up their data. However, the court, led by Justice Kaul, expressed concerns over the arbitrary seizure of media professionals’ digital devices and stressed the need for better guidelines to protect their interests.
“I’m finding it very difficult to accept some kind of all-within power that the agencies have…This is very dangerous. You must have better guidelines,”
Justice Kaul stated.
Senior Advocate Nitya Ramakrishnan, representing the petitioners, emphasized the urgent need for guidelines, suggesting that copies of necessary data on devices could be taken instead of seizing the entire content. She pointed out that 300 journalists were raided in relation to the recent Newsclick case and urged the Court to consider laying down interim guidelines.
The Supreme Court expressed skepticism about the government’s assurances regarding the framing of guidelines. However, ASG Raju assured the Court that the guidelines would be ready by the next week. “Get it done,” the bench said as the hearing drew to a close. The Court then ordered the case to be listed on December 14.
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The Foundation for Media Professionals, in its writ petition, underscored the inadequacy of existing laws, originally designed for physical searches and seizures, to address the complex challenges posed by digital spaces. The petition states,
“In the modern world of limited government based on constitutionalism, where personal digital devices have become extensions of themselves, and where such devices contain vast amounts of personal and intimate data, existing legal safeguards are insufficient to adequately protect an individual’s constitutional rights.”
The situation has been further complicated by a 2021 Karnataka High Court judgment issuing guidelines for investigating officers to carry out searches and for the preservation of evidence gathered during the process in respect of smartphones, electronic equipment, or email accounts. This judgment, the petition states, is
“erroneous, and misinterprets the constitutional guarantee against self-incrimination.”
The Foundation has also raised concerns over the ‘unsettling trend’ of law enforcement agencies conducting intrusive searches and seizures of personal digital devices, leading to a chilling effect on the exercise of constitutional freedoms, particularly within the journalist community. The foundation has urged the court to issue guidelines to strike a balance between the right to privacy in the digital space and the legitimate interests of law enforcement, in line with established judgments.
