NewsClick Case: Pressing Questions on Delhi Police's Powers To Search and Seize

Across the democratic world, journalistic material has a much higher degree of protection, writes Prasanna S.

The recent raids by the Delhi Police on journalists and contributors associated with NewsClick, the confiscation of their personal digital devices – including mobile phones and laptops – and coercing them to part with credentials such as passwords to facilitate police access have brought focus on one of the least developed aspects of our criminal procedure law.

In a letter to the Chief Justice of India, DY Chandrachud, at least 18 press bodies have drawn attention to this lacuna in the law – and the matter pending before it, i.e., Ram Ramaswamy v Union of India WP(Crl) 138/2021 – and have underscored the need to urgently issue guidelines for search and seizure of personal digital devices.

This piece attempts to give a gist of the issues that have been raised in the Ram Ramaswamy case and the problems that the SC guidelines (if and when they are issued) are expected to address.

The case was filed in 2021 by five distinguished academics – Ram Ramaswamy, Deepak Malghan, Sujata Patel, Mukul Kesavan, and Madhava Prasad.

It has been admitted for hearing by the SC. At one of the previous hearings, the SC imposed costs on the Government of India for not taking the matter seriously enough and for not having revised a previous reply-affidavit, which the court had frowned upon and clearly was not satisfied with.

Pressing Questions on the Police's Power To Seize

The first question relates to the power under which personal digital devices can be obtained by the investigating agency. In particular, whether the agency can ask for the production of personal digital devices – with hundreds and thousands of documents and files in each device – under Section 91 of CrPC (Code of Criminal Procedure), which enables the police to direct the production of "any document or other thing."

The powers under Section 91 contemplate specificity, and this power cannot possibly be expanded to cover such a huge collection of documents on a digital device.

On the other hand, powers to search without a warrant under Section 165 also require the recording of reasons, including the description with specificity of the thing that is being searched for. Section 93(1)(c) allows for a general search but only pursuant to a court's warrant.

All of these provisions, therefore, clearly contemplate the prevention of a roving inquiry or a 'fishing expedition'. However, the seizure of a personal digital device in full enables exactly that.

Is Section 91 CrPC Applicable to Accused?

Another related question that arises is whether a Section 91 notice could be issued for the production of devices to an accused and if such a notice is issued, whether it violates the right against self-incrimination under Article 20(3).

The Shyam Lal and Kuttan Pillai cases clearly state that a 91 summons cannot be issued to an accused – most certainly when there is already a criminal proceeding in motion (i.e., when the trial has begun or just before).

In Nandini Satpaty's case, it has been held that the right against self-incrimination also extends to the stage of investigation. If that is the case, can a 91 notice be issued when someone is named as an accused in an FIR?

Should the accused be counselled that they have the right to refuse to comply with a 91 notice if so?

Even if one were to say that production of an article under Section 91 when the person is not formally accused in a proceeding is not 'testimonial compulsion' so as to involve an Article 20(3) right, can the accused be asked to verbally state as to what the device's credentials are?

Third, and somewhat more important in the NewsClick case, is the integrity of electronic material seized. Contemporaneous recording of hash-values and opening of chain of custody reports at the time of seizure is a commonsense approach so as to be able to show the integrity of the seized material and that all due diligence had been done to ensure there is no tampering of those devices while in the custody of the police.

However, this is neither the current practice nor was what followed in this case. No police agency appears to have these procedures mandated in any internal guidelines or SOPs.

The cloning/snapshotting process is usually carried out at a separate forensics facility and not done using suitable equipment at the time of seizure. If such a process is after the event of the seizure, what is the reasonable time lapse between the seizure and such a snapshotting process? What are the safeguards that are necessary to be observed during such an intervening period?

Search and Seizure Provisions & Other Anomalies

Yet another ancillary is whether the device owners have a right to be present during such a cloning process either through themselves or their counsel; and whether they have the right to be counselled and informed of the existence of such a right.

It is worth noting that the general search and seizure provisions of the CrPC had been challenged in MP Sharma's case in the early 1950s on the grounds of violation of the right to privacy (among other grounds). A critical finding of this case has been overruled in the nine-judge bench ruling of Puttaswamy.

One of the reasons that the nine-judge bench of the SC unanimously held privacy to be a fundamental right was that in 'the digital age', it would be impossible to guarantee and protect the right of privacy without granting it the exalted position and promoting it as a fundamental right.

This is not merely a declaration of law, but a direction to modify and temper all state practices in light of that fresh understanding. The somewhat archaic search and seizure powers will also have to be similarly reshaped.

Here, the reader may be interested to note the somewhat peculiar position that Indian law has taken in comparison to some of the other jurisdictions. Indian Constitution has no enumerated right against unreasonable or unlawful searches. However, the Constitution has an enumerated right against self-incrimination.

This has led to a development of the law in the direction that has grown to be more tolerant of irregular and expansive search powers in order to accommodate the broad right against self-incrimination. This approach may also need a rethink in the case of personal digital devices.

Both the rights – i.e., the right against unreasonable searches, which go to the root of the right to privacy, and the right against self-incrimination are valuable, and both need to be protected and preserved.

What Do the Guidelines on Examination of Personal Digital Data Say?

The fourth aspect is the question of the process of examination of electronic data seized. There are few guidelines on what and where the police could examine in the trove of data that get hold of upon seizing electronic devices – whether they could look at all communications or only for specific information they are looking for. Does this segregation of what is relevant to the investigation at hand depend on the nature of the offence?

If so, is there a taxonomy of offences for which different guidelines can exist? A taxonomy suggested on behalf of the petitioners in Ram Ramaswamy's case – after reviewing some of the literature on the subject –is as follows.

• Class A: Where the device is the target or the object of crime;

• Class B: Where the device is the tool or instrument of crime, e.g., digital forgery, illegal hacking, blackmailing, circulating child pornography, etc;

• Class C: Where the device is only a source of evidence relating to crime, e.g., email correspondence;

• Class D: Where the device is only an environment of a crime committed by those not necessarily in control of it – such as using a website hosted by another to publish pornography or incite any offence.

Perhaps, different examination guidelines are warranted for each of these classes separately. Related questions are about the right of the accused to be present during such examination so as to prevent a roving inquiry and the norms of judicial control over such an examination process.

Journalistic Privilege in State's Access to Private  Information in Digital Devices

The fifth aspect is that of privileged communications. Given personal digital devices may contain private and intimate information, engaging the privacy of personal data as well as the privacy of personal correspondence – both of which are constitutionally protected – requires closer examination.

Correspondence may also involve privileged communication – such as journalists' conversations with a source; a client's conversations with her lawyer or her doctor, or communication between spouses.

Questions such as whether guidelines will have to be specifically issued to segregate and protect such privileged communication from either being seen, stored, disclosed, or publicised, or be used against the person communicating in anyway, also arise.

Journalistic privilege is directly in issue in the NewsClick case. Although freedom of press is not separately enumerated in the Constitution and is often stated that it is only at par with any ordinary citizen's right of expression, later judgments of the SC recognise the importance of the press in a modern democracy, and elevate its institutional status keeping in mind its duty to inform and educate the citizens – which is also protected under the same constitutionally enumerated right under Article 19(1)(a).

Across the democratic world, journalistic material has a much higher degree of protection warranting a much higher threshold of substance to be shown before interference can occur.

A comparative chart indicating such protections available in other jurisdictions has also been placed before the court on behalf of the Petitioners. For instance, Sections 8, 11 and 12 of the UK's Police and Criminal Evidence Act, 1984, straight away excludes journalistic material from being subject to the general powers of search under Section 8.

Witnesses and Complainants Not Outside Police Radar

The sixth issue does not squarely arise in the NewsClick case – but is still relevant. While we have so far seen the issues with seizing and examining an accused person's device, there are also concerns with the practice of the police obtaining and examining the devices of witnesses and complainants.

For instance, the collection and cloning of the entire data of complainants' devices as part of the investigation is reckless – particularly when considering that the court may grant the accused access to the entire copy of that data, which may or may not be desirable.

In a most telling example of this lapse, the entire data of the survivor's phone in the Tarun Tejpal case was cloned and held by the police, which the accused in that case got access to and was able to build the entire defence attempting to slut-shame the survivor based on the contents of her phone!

The above is only an inexhaustive list of issues in which the petitioners in Ram Ramaswamy are pressing for broad guidelines to be framed to address. The SC guidelines have often been critical interventions to secure procedural justice – rights of arrested persons in DK Basu's case (which later was carried over as amendments to CrPC); for registering FIR in Lalita Kumari's case; pre-arrest procedure in Arnesh Kumar's case; to more recently, the guidelines on bail in Antil's case.

One hopes that similar guidelines on search and seizure are framed and issued until the legislative process to codify the principles contained is able to catch up.

(Prasanna S is an Advocate-on-Record in the Supreme Court and assists the Petitioners in the Ram Ramaswamy petition. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)