10 Nov 2023 3:20 AM GMT
Five academicians who have petitioned the Supreme Court seeking guidelines for the seizure of personal electronic devices by investigating agencies have prepared a set of draft guidelines and have submitted them to the Court (Ram Ramaswamy and Ors. v. Union of India and Ors.).
On Thursday (November 9), the ,matter came before the Bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, when the Court directed Senior Advocate Nitya Ramakrishnan to circulate these guidelines to the Union and the States. It may be noted that two days ago, while considering a petition filed by Foundation for Media Professionals, the Supreme Court had expressed concerns about the seizure of digital devices of journalists and told the Centre that better guidelines are needed. Both the petitions are now listed on December 5.
These guidelines have been filed through Advocate S Prasanna.
Some significant features of the draft guidelines are :
1. Seizure of electronic devices must take place only after a judicial warrant; emergency seizure must be an exception, with reasons recorded for not obtaining a judicial warrant. However, in either case, it is also required to be “expressly” set out as to why and in what capacity the device is required to be seized.
2. Seizure should not be permitted on the ground that evidence may be found. “In other words, seizure on the conjecture that evidence may be found will not be permissible in any circumstance especially where the device does not belong to an accused person.,” explained the petitioners.
3. Privileged, professional, journalistic, or academic materials must be excluded from emergency seizure. The same will only be allowed by way of a judicial warrant and only if the material is directly linked with the crime. “If the intention is to search such privileged, professional, journalistic, or academic material, then it must only be by a judicial warrant and upon the ground that the said material is directly part of the crime under investigation and not merely evidence of the same.”
Search, Retention, And Return of Devices/Material
Immediately after seizure of the device, the same shall be produced before an independent agency. All the material (irrelevant, personal, and privileged) shall be identified. Further, the relevant material shall be segregated following which a copy of the relevant material will be taken. The device will be returned immediately after that. Apart from this, guidelines also clarify that there will be no retention of any other excluded material.
“At initial examination by an independent agency, in the presence of the owner of the device (or their agent), all irrelevant, personal, and privileged material is separately identified, the material relevant to investigation is demarcated and only a copy of such relevant material is taken. The irrelevant, privileged, or personal material so excluded must not be retained, and the device itself should be returned immediately after taking a copy of only the relevant material for the investigation or suspect material.”
Owners can't be compelled to give away passwords
Under situations of search and seizure, the owners of electronic devices cannot be compelled to give away their password unless they legally bound to do so under statutory provisions like Section 69 Information Technology Act, 2000.
“The person whose electronic devices are sought to be searched/seized shall not be compelled to divulge any credentials or passwords or information, including any cloud-stored information except as statutorily prescribed for e.g. Section 69 Information Technology Act, 2000 if and when applicable. Additionally, the laws enabling information from service providers/intermediaries may apply, in the circumstances warranted in those laws.”
It was also specified that “no person shall be summoned by the police to produce their electronic devices whether as witnesses or accused”.
With respect to the duty of the investigating officer, it was also highlighted that:
“In all circumstances, it shall be the duty of the investigating officer to ensure the extraction of relevant information and timely return to the owner or handing over safe custody to a court or other authority (where the owner cannot be found) to ensure copies are not accessed by any unauthorised person.”
Last but not the least it was also emphasised that if these basic precautions are not adhered with then such material will not be used against the accused person.
“Where these basic precautions have not been maintained, such material will not be used in any court or against any person accused of an offence or in any manner whatsoever.”
Case Title: Ram Ramaswamy And Ors. v. Union of India And Ors. WP(Crl) No. 138/2021