(Judicial Quest News Network)
The Supreme Court on Monday urged the CBI to evolve with the passage of time, “the world has changed so CBI should also change”
During the course of the hearing of a plea, seeking directionson Police and investigative agencies, working under the control of the cwentral and State governments for specifying guidelines with regards to sizures of the electronic devices.
The top court further said that the examination and preservation of personal digital and electronic devices and their contents therof.
The bench comprising Justices Sanjay Kaushal and A.S. Oka noted that the CBI must keep up with the changes that are broughtabout in the criminal manualsin the other jurisdictionsin this regard.
The petition is filed by five academics- jawaharLal Nehru University professor Ram ramaswamy, Savitribai Phule Pune University professorSujata Patel, Professor of Cultural Studies Hyderabad’s English and Foreign languages University Madhava Prasad, Professor of Modren Indian History at Jamia Millia Islamia Mukul Kesavan, teoratical ecological economist Deepak Malghan and Foundation for Media Professionals through its president.
The petitioner further submitted that today, digital devices, especially personal devices such as mobile phones and laptops, contain more sensitive personal dataabput individual’s then physical space, such as a house or a vault.
They ca be found with a person almost at all times, and are effectivelyan extension of the self, therefore the existing legal provisions, either undwer the Criminal Procedure Code 1973,[Cr.P.C] or under various special laws, are insufficiently tailored to ensure that law enforcement aghencies excersie powers in a manner consistent with fundamental right to privacy.
Senior Advocate, Ms.Nitya Ramakrishnan appearing on behalf of the petitioner submitted that the CBI manual is lying in a sealed coverand is not accessible.
“Any procedure that is meant to protectthe citizen cannot be lying in sealed coverin an office.What the CBI procedure says we do not know”
It was further submitted that the other procedures are constantly working and updating their manualto deal with the challenges to privacy.
The ASG S.V.Raju retorted stating that the Manual is available on the Internet.To, this court asked him why the manual is kept in a sealed coverif it is publicly accessible.
It is further submitted that enabling law enforcement agencies to have unbridled and untrammelled access to the personal digital devices merely on the strength of untested, uncverified allegation against an individualis not only grossly disproportionate to the any perceived state interests in pursuit of the case but also ipso facto transforms the investigations into a specific offenceon the basis of some information independent of the individual,into a roving and fishing inquiry based on nothing other than material that the individual herself is compelled to furnish to the authorities and destroys the right to privacy.
The ptitoners sought directions to the investigating agencies and the police, including seeking permission from a judicialmagistrate before accessing and seizing electronic devices and specifying hoe the material is relevant or linked to the alleged offence.
The law enforcing agencies shoul not seek access to an individual’s digital device without applying for and obtaining a prior judicial warrant, except in case of emergencies, where such a warrant must be sought for- and granted – within 48 hours of the sdearch , failing which the search shall be deemed to be unconstitutional and any material obtained therefrom rendered inadmissible in evidence.
The plea also mentioned that several persons from whom devices have been seized in alleged offences registered in the recent past belong to the academic fielfd or noted authors.
“The academic community does not stores its research and writing in the electronic or digital medium, and the threat of damage , distortion loss or pre-mature exposure of academicor literary work in the event of sizure of electronic devices is considerable”the petition added.
The petition preferred by the Foundation for Media Professionals, assisted by the Internet Freedom Foundation and filed through Advocate-on-Record Mr. Rahul Narayan contends that the existing laws do not regulate the police’s power to search or seize electronic devices.The lack of regulation enables the police to engage in dubious practices such as mandating individuals, with or without reasonable suspicion, to grant access to mobile devices making clones of those and sharing the information they obtainwith third parties or governmental agencies.These practices violate the right to ptivacy and the constitutional guarantee against self-incrimination.
The power of law enforcing agencies to compel the production of material by search/seizure is provided under the Code of Criminal Procedure, 1973 ansd enactments such Income tax Acr,1961, Customs Act, 1962, Competition Act.2022 and Companies Act 2013,However these provisions were enacted to permit the policeto search/seize objects in the physical world.The gist of the general existing law is that ‘documents’or ‘thingscan be provided willinglyby persons in response to request by police to provide the same.