The Special Cell of the Delhi Police raided homes and offices of several journalists including columnists and commentators associated with NewsClick – a digital news organisation. The police has seized the journalists’ phones, laptops and other personal devices in connection with an UAPA case registered against the news portal in August.
Journalists associated with the news portal confirmed the developments on social media. “Delhi police landed at my home. Taking away my laptop and phone,” journalist Abhisar Sharma wrote on X; while Bhasha Singh wrote: “Finally last tweet from this phone. Delhi police seizure my phone.”
In August, the Delhi Police registered a UAPA and conspiracy case against NewsClick and its editor-in-chief Prabir Purkayastha days after the New York Times alleged that the news portal received funding from American tech mogul Neville Roy Singham for pushing Chinese propaganda.
Senior journalists Urmilesh, Paranjoy Guha Thakurta, and Anuradha Raman, commentator Aunindyo Chakravarty, author Gita Hariharan, historian Sohail Hashmi, and satirist Sanjay Rajoura were some of the people raided by the Delhi Police. Reports suggest, that the Delhi Police were armed with search warrants in some cases and several of the journalists have been detained.
This is a developing story.
Can the police seize one's phone, laptop?
The Delhi Police today seized phones and laptops from the raids on NewsClick journalists. But, what does the law say on the seizure of personal devices?
According to the law, the police can seize and search the phones of an accused after obtaining a search warrant. A phone is considered as one's private property and the Code of Criminal Procedure (CrPC), 1974 says that “any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence”.
In order to get a search and seizure warrant, the police must also first prove how the phone is related to the commission of offence before it is seized. And once it is seized, the jurisdictional magistrate must be immediately informed of this development.
In March 2021, the Karnataka High Court issued guidelines for the seizure of personal electronic devices. The high court said a qualified forensic examiner must accompany the team that is conducting searches of electronic devices like smartphones, laptops, or even e-mail.
Legal vacuum on search and seizure laws
Advocate Prasanna S said that presently there is an urgent need to have guidelines for search and seizure of devices. “The integrity of electronic evidence is compromised because when the police seize devices no hash value reports are given, nor is the chain of custody followed. The police are operating without a manual, process or SOP, he told BOOM.
Prasanna, who has filed a PIL on this issue before the Supreme Court, said journalists and human rights defenders are particularly vulnerable. “They will have sensitive information and must be accorded a higher and stricter constitutional protection of the law,” the advocate said adding that their phones may contain information exchanged with sources, medical practitioners, and advocates which must be protected.
Phones also have exchange with spouses which are subject to constitutional protection, he added.
"The law gives very broad powers to seize documents that would include devices. These powers are arbitrary and overbroad, which makes them perfect for misuse by the police if required so," advocate Harsh Bora said.
Section 91 of the CrPC allows for the production of any document or other thing considered necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding. "However, whether this necessary or desirable can remain as it is or whether it needs to be read down to mean only 'necessary'; and whether in light of the SC's decisions in Shyam Lal and Kuttan Pillai, whether a named accused in an FIR can be asked to produce his phone; and whether a phone or a laptop consisting of several hundreds of documents can be asked to be produced when Section 91 on the phase of it requires specificity in the description of the document being asked to be produced," Prasanna said.
In 2018, a nine-judge bench of the Supreme Court in its Puttaswamy verdict said the right to privacy is a fundamental right but not an absolute right. In the post-Puttaswamy world, laws on electronic surveillance thus need to be revisited.
The 1954 MP Sharma case where search and seizure provisions of the CrPC were upheld was also overruled in the Puttaswamy judgement. Since then there has been a legal vacuum on the law for search and seizures, Prasanna said. “There are reasons to believe that all of these search and seizures are fishing expeditions,” he added.
In March 2021, the Karnataka High Court observed that the examination of a smartphone or an e-mail account is in the nature of a search being carried out and as such it could not be done without a search warrant. An accused has the right to remain silent to avoid self-incrimination, thus compelling one to give up passwords for their electronic devices would violate this right, the high court observed while saying down guidelines for search and seizure.
In August 2022, the Supreme Court said it must “protect” “personal contents” in electronic devices seized by probe agencies. The top court took exception to the Centre’s casual and dismissive approach to a PIL that sought guidelines on the “seizure, examination and preservation” of such personal devices.
“Saying ‘not maintainable’ is not enough… These (devices) have personal contents and we have to protect this. People live on this,” the supreme court had orally observed while hearing the plea filed by retired JNU professor Ram Ramaswamy, historian Mukul Kesavan, economist Deepak Malghan, professor M Madhava Prasad and sociologist Sujata Patel.