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Arbitrary Search And Seizure Of Devices Of Journalists Is A Serious Matter, Proper Guidelines Required For Such Actions: SC

The Supreme Court of India was hearing a public interest litigation (PIL) filed by the Foundation for Media Professionals (FMP) in 2022, asking the Court to regulate the search and seizure powers of the police.

The Supreme Court on November 7 said that better guidelines must be put in place for the search and seizure of digital devices of individuals, specifically media professionals, in view of privacy threats posed by such operations by law enforcement agencies, according to a LiveLaw report. The Court was hearing a public interest litigation (PIL) filed by the Foundation for Media Professionals (FMP) in 2022, asking the Court to regulate the search and seizure powers of the police and called for draft legislation ensuring such actions do not infringe upon an individual’s fundamental rights.

According to the LiveLaw report, a bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia observed that guidelines were needed to protect journalists from unreasonable and unlawful seizures of their personal devices.

“It’s a serious matter. These are media professionals who will have their own sources and other things. There must be some guidelines. If you take everything away, there’s a problem. You must ensure that there are some guidelines,” Justice Kaul noted.

While Additional Solicitor-General SV Raju argued that there are provisions in place for journalists to back up their data before their digital devices are seized, Justice Kaul raised apprehensions about the potential abuse of power by law enforcement agencies. He observed:

“…I’m finding it very difficult to accept some kind of all-within power that the agencies have…This is very dangerous. You must have better guidelines…It can’t be a State that’s run only through its agencies. We’ll give you time, no difficulty. But you must analyse what kind of guidelines are necessary to protect them. To some extent, this is not adversarial in that sense.”

The case will be next heard on December 6, 2023.

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What has the Centre argued so far:

In December 2022, the SC had unbundled two connected petitions in the matter concerning the search and seizure of electronic devices—one filed by the aforementioned Foundation for Media Professionals, and the other by a group of academics. The academics had critiqued the unchecked power of the investigating agencies in conducting search and seizure operations and highlighted that the threat of academic work being damaged due to such actions is “considerable”.

In its counter-affidavit filed in response to the academics’ plea, the government has mainly argued that the right to privacy is not absolute and that search and seizure falls under exemptions to the right. The government also referred to the CBI Manual outlining procedures for carrying out search and seizure investigations, stating that the process mentioned would address concerns put forth by the petitioner. This is while the primary concern in these cases remains that searches are being carried out without adherence to due process.

Why it matters: The apex court’s observations are important in light of the recent raids by the Delhi police targeting at least 46 journalists, editors, and professionals associated with online news portal NewsClick, wherein the police seized their laptops, phones, hard disks, etc. In the aftermath of the raids, 18 media bodies wrote a letter to the Chief Justice of India informing that the seizure of mobile phones was carried out in the absence of due process laid out in law. The letter also urged the Court to consider establishing norms, and evolving guidelines to discourage “the seizure of journalists’ phones and laptops on a whim, as has been the case”.

The media bodies also highlighted that numerous such instances in the past have necessitated measures to ensure State accountability against unjustified actions that gravely impact the freedom of the press in the country. Additionally, India’s Digital Personal Data Protection Act provides wide-ranging exemptions to State agencies for purposes of crime investigation or for reasons of national security. This further restricts the scope of data privacy rights available to an individual under the data protection law vis-à-vis the powers of the agencies.

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Curious about the intersection of technology with education, caste and welfare rights. For story tips, please feel free to reach out at sarasvati@medianama.com

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