Safeguards in Investigation of Digital Devices: Supreme Court Seeks Detailed Affidavit from Union Government

EARLIER today, the Supreme Court expressed dissatisfaction with the Union Government’s reply in response to a public interest litigation (‘PIL’) seeking suitable guidelines to investigative agencies regarding the seizure, examination, and preservation of digital and electronic devices and their contents. The court said that the government had questioned the maintainability of the petition, but that was not enough.

A bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh directed the Additional Solicitor General of India (‘ASG’) S.V. Raju to file a detailed affidavit duly referring to international practices with regard to search and seizure and preservation of digital and electronic devices. The bench added that a decision at the appropriate level by the Union Government ought to be taken so that a proper stand of the government is presented before the court.

ASG Raju requested the bench to call for a response from state governments, but the bench said that first, it would like to have the stand of the Union Government before it.

The bench was hearing a PIL filed by renowned academics Ram Ramaswamy, Sujata Patel, M. Madhava Prasad, Mukul Kesavan and Deepak Malghan. It had issued notice on the PIL in March last year.

The Union Government, in its affidavit, contended that the PIL is not maintainable for being vague and based on surmises, and not being founded on any actual instances of violation of constitutional rights of the petitioners or any other member of the academic community in the country. It further averred that the pleadings are entirely based on apprehensions that the work of academics may not be protected upon potential seizure by law enforcement authorities. 

The plea, however, contended that there were no specific and binding norms in place to guide the exercise of such power, and no procedure in any law or even in most police manuals that was appropriate to the recovery of electronic or digital material, which was distinct from the recovery of any other kind of material.

“They contain an entire professional and personal world, most of which is no concern of any investigation. Data is amenable to easy change and to remote tampering. Yet, in the course of investigation, digital devices such as laptops and phones are seized simply as material objects, and the many matters of professional and personal importance they contain are compromised at the hands of state agencies”, the plea stated.

The plea urged the court to consider the following safeguards: requirement of a prior warrant from a Magistrate except in cases of utmost urgency, and in either case, recording of the nature of material sought and its necessity to the investigation; passwords or unlocking of devices in cases of biometric encryption should not be compelled; noting of hash value in the seizure memo; ideally, a copy of hard drive should be taken, not the original, else the copy must be given to the owner/representative at the time of seizure; examination of device in owner/representative’s presence; removal of material irrelevant to investigation from the investigator’s copy, among other measures thought fit and proper.

It added that the entirely unguided power exercised by investigative agencies to take control of personal digital devices that contain much, if not all, of a citizen’s personal and professional life, requires to be civilised by way of directives from the court.

The plea went on to say that there is no procedural mechanism to sift the contents of devices and protect that which is irrelevant to an investigation, but important to the owner of the device.

“Suitable measures need to be evolved in light of the nine-judge bench decision in Justice (Retd.) KS Puttaswamy v Union of India”, the plea said.

It thus sought directions from the court to the effect that search and seizure done by investigative agencies of digital devices is by a procedure that safeguards: (i) the right to privacy, (ii) the right against self-incrimination, (iii) the need for the State to demonstrate necessity and proportionality in respect of its action impacting those rights, (iv) privileged communication and material, (v) confidentiality of professional work, (vi) return of seized material so as to not hamper professional work, and (vii) integrity of digital evidence during and post-search/seizure.

Senior advocate Nitya Ramakrishnan, assisted by advocate Prasanna S, appeared for the petitioners.