Supreme Court Nudges Government to Frame Guidelines on Seizure of Digital Devices during Investigation
The Guidelines, expected by December 14, 2023, are likely to define, if not circumscribe, the powers of investigating agencies and prescribe procedure.
Introduction to the Case
In a significant development, the Centre has informed the Supreme Court of India that the report of the Committee, set up to formulate guidelines for the search and seizure of electronic devices during investigation, shall be ready by December 14, 2023. This disclosure comes in response to the Supreme Court’s recent directives, accentuating the need for comprehensive guidelines to govern the seizure of digital devices, including mobile phones, particularly those belonging to the media professionals. The Supreme Court was hearing on Wednesday a petition filed by the Foundation for Media Professionals against the Union of India (Writ Petition (Criminal) №395 of 2022).
Fundamental Rights Constitutional Issues Involved
This issue intersects with various fundamental rights, such as the freedom of speech, right to privacy, and the right against self-incrimination under Article 20(3) of the Indian Constitution. Article 20(3) states that no person accused of an offence shall be compelled to be a witness against themselves. Additionally, the proposed guidelines must address practical procedural aspects to ensure both the integrity and confidentiality of data during such seizures.
Progress Report and Judicial Oversight
On Wednesday, Additional Solicitor General (ASG) S V Raju, representing the Centre, informed the Bench comprising Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia that barely a week was needed to finalize these guidelines. The Court has adjourned the matter to December 14, 2023, which notably could be Justice Kaul’s last working day on the Bench before his retirement on December 25, 2023.
Critical Questions for Consideration
The core questions that these guidelines need to address include:
- Whether a search operation can be conducted without a warrant, and whether digital devices can be seized during an investigation without a warrant.
- In light of the right to privacy being a fundamental right under the Constitution of India, what constitutes the “procedure established by law” to impose reasonable restrictions on this right.
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