5 Jan 2024 9:33 AM GMT
The Supreme Court on Friday (January 5) sought the response of investigating agencies like Delhi police, Central Bureau of Investigation (CBI), and the Directorate of Enforcement (ED) to NewsClick's plea seeking guidelines for the search and seizure of digital devices.
A bench of Justices BR Gavai and Sandeep Mehta was hearing a writ petition filed under Article 32 of the Constitution by digital media platform NewsClick and its founder, Prabir Purkayastha. They have sought the issuance of guidelines regarding the search, seizure, examination, and preservation of digital devices and data seized by law enforcement agencies, in response to recent raids conducted by the Delhi Police, targeting the residences and offices of journalists associated with the organisation. The raids, conducted under the Unlawful Activities (Prevention) Act, resulted in the arrest of Purkayastha and Amit Chakravarty, NewsClick's human resources head.
The filing of the first information report (FIR) under the anti-terror statute, coupled with en masse raids, also led to the seizure of digital and electronic devices belonging to NewsClick, its journalists, and other stakeholders. The petitioners have argued that the illegal search and seizure have severely impacted NewsClick's operations, resulting in a standstill and a constrained functioning with limited access to its database. These searches and seizures, the petitioners have contended, were not only an infringement on fundamental rights guaranteed under the Constitution, but were in violation of legal safeguards under the UAPA, the Code of Criminal Procedure Code, 1973, and the Delhi High Court Rules. In support of this contention, they have alleged a failure to provide information about search warrants, produce warrants during the raids, call independent witnesses, and provide essential documentation to the petitioners.
Claiming arbitrariness, an absence of due process, and an excessive abuse of power by the investigating agencies, NewsClick and Purkayastha have insisted that the raids aimed to stifle free speech and undermine their fundamental rights. Concerns have been raised in particular about press freedom and the government's handling of dissenting voices. During the hearing today, Senior Advocate Kapil Sibal representing the petitioners, told the bench, "No procedure of law was followed, no documents are given. Nothing is done."
The bench initially expressed its reluctance to entertain an Article 32 plea, with Justice Gavai saying, "We don't appreciate everyone coming directly under Article 32."
"Other petitions on this issue have been entertained on this very issue which are pending before this court," Sibal countered, pointing to the public interest litigation (PIL) petitions filed by the Foundation for Media Professionals and a group of five academicians seeking guidelines for the seizure of personal electronic devices by investigating agencies, to protect individuals against unreasonable interference by such agencies. These petitions were last heard by a bench headed by now-retired Justice Sanjay Kishan Kaul, on which occasion, Additional Solicitor SV Raju assured the court that the union government will soon come up with robust search and seizure guidelines, and in the meantime, all central agencies will follow the 2020 Central Bureau of Investigation (CBI) Manual on digital evidence.
"They'll stop our business, seize everything, put people inside. It's very unfair," Sibal exclaimed, in an attempt to persuade the bench.
Ultimately, the bench agreed to issue notice in NewsClick and Purkayastha's writ petition and tag them with the other pleas seeking comprehensive guidelines on search and seizure of digital devices by investigating agencies.
The grounds of the current petition touch upon various constitutional rights, including the right to free speech and expression under Article 19(1)(a), the right to practice any profession or carry on any occupation or business under Article 19(1)(g), the right against self-incrimination guaranteed by Article 20(3), and the right to privacy recognised as a facet of Article 21. The petitioners have urged the top court to address the absence of guidelines for the search and seizure of digital devices, emphasising the need for procedural safeguards in a rapidly evolving technological landscape. The lack of clear guidelines on issues such as securing personal devices against tampering, protecting privacy, and determining the duration of seizures poses a significant challenge and violates individuals' fundamental rights, their petition asserts.
In order to ensure a fair and lawful investigative process, and in the interest of safeguarding press freedom and individual rights, the petitioners have sought a writ of mandamus or any other appropriate writ, order or direction to the union government, Delhi government, Delhi police, Enforcement Directorate, Central Bureau of Investigation, income tax department, and finance ministry specifying guidelines regarding search, seizure, examination, preservation and sharing of digital and electronic devices and the data contained in the devices.
The petition has been drawn by advocates Harshit Mahalwal and Harsh Srivastava, settled by Advocate Arshdeep Singh Khurana, and filed by Advocate-on-Record Nitin Saluja.
Background
On October 3, Delhi police conducted raids on the residences of prominent journalists associated with NewsClick, a news organisation known for its critical coverage of the Indian government. According to police officials, a total of 46 suspects – 37 men, and 9 women – were questioned and their electronic devices seized under the Unlawful Activities (Prevention) Act following allegations that the portal received funds for pro-China propaganda. The organisation came under the investigating agency's scanner after a report by The New York Times said the firm allegedly received money from US billionaire Neville Roy Singham, who is accused of pushing campaigns in support of China and its propaganda. After the day-long search, seizures and detentions, the Delhi Police arrested NewsClick founder and its editor-in-chief Prabir Purkayastha, and Amit Chakravarty, the organisation's human resources head, under the UAPA. The duo is currently in custody.
Last October, the Delhi High Court dismissed Purkayastha's and Chakraborty's pleas challenging a trial court order remanding them to seven days of police custody in the UAPA case. They challenged their arrest, arguing that the grounds had not been supplied to them in writing, with a copy of the first information report (FIR) being provided only after they approached the court. Aggrieved by the high court's decision, Purkayastha and Chakraborty filed special leave petitions in the Supreme Court. These pleas are currently pending before the top court, which issued notice in both petitions and sought Delhi police's response in October.
In related news, the company owning the NewsClick portal has also approached the Supreme Court against a Delhi High Court order rejecting its challenge against the demand raised by tax authorities, seeking an ad-interim ex-parte stay. A bench headed by Justice BV Nagarathna issued notice and sought the income tax department's response to the petition this week.
Case Details
M/s PPK NewsClick Private Limited & Anr. v. Union of India & Ors. | Writ Petition (Criminal) No. 679 of 2023