Tl;dr
On December 14, 2023, the Union Government assured the Supreme Court (“SC”) that Union agencies will duly follow the procedures laid down in the 2020 CBI (Crime) Manual on Digital Evidence till final guidelines on search and seizure of digital devices were formalised. This assurance was recorded by the SC in an order which was passed in a petition filed by the Foundation for Media Professionals (“FMP”) in October 2022, seeking the laying down of guidelines 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. FMP was represented by Senior Advocate Siddharth Aggarwal, with legal assistance from IFF.
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 were given to the Union of India to contemplate the issue and return on the next date of hearing, i.e. December 6, 2023.
On December 4, 2023, the Petitioners in Ram Ramaswamy v. Union of India case sought for the tagging of their petition with that of FMP, and consequently, both were taken up together on December 6, 2023. The Court noted that the Petitioners in both the cases had filed/handed over in Court draft interim guidelines, and recorded the submission of Union of India that a committee had been constituted to draw up the guidelines. Thereafter, the Court listed the matter for December 14, 2023.
On the said date, the Union of India submitted to the Court that discussions had been held, and that they would come up with something within 6 weeks of time. The Court was further assured that in the interim period, the procedures governing search and seizure of digital devices in the 2020 CBI (Crime) Manual shall be duly adhered to by Union agencies. Accordingly, the matter was adjourned to February 6, 2024.
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, 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. We also want to record our gratitude for Senior Advocate Nitya Ramakrishnan and Advocate Prasanna S. for their hard work in Ram Ramaswamy v. Union of India.
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