Supreme Court Not Satisfied With Center’s Counter-Affidavit; Look for a better answer


The Supreme Court on Friday expressed dissatisfaction with the counter affidavit filed by the Union government in response to a writ petition seeking guidelines for the seizure of personal electronic devices by investigative agencies.

“We are not satisfied with the counter and we are looking for a new and appropriate answer”, a bench comprising Judges Sanjay Kishan Kaul and MM Sundresh observed in the command. The bench said the Center should also refer to international practices in this regard.

The case will be heard on September 26.

Judge Sanjay Kaul orally observed that it is not enough for the Center to say that the motion is inadmissible, as stated in the counter affidavit filed to date.

Judge Sundresh said orally that the devices contain people’s personal content that needs to be protected.

Additional Solicitor General SV Raju said the Center would review the matter.

The bench heard a PIL filed by 5 academicians namely Ram Ramaswamy (Retired JNU Professor), Sujata Patel (Professor Emeritus at Savitribai Phule Pune University), Ms Madhava Prasad (Professor of Cultural Studies at University of English and Foreign Languages, Hyderabad), Mukul Kesavan (Delhi-based writer) and Deepak Malghan (Theoretical Ecological Economist).

PIL has requested instructions from police and investigative agencies, working under the control of central and state governments, to specify guidelines for the seizure, examination and retention of personal digital and electronic devices and their contents.

The petition filed through Attorney S Prasanna relates to the right to privacy, the right not to incriminate oneself, the protection of privileged communications, the integrity of electronic material and the return of copies of material seized from the accused or the person under investigation.

Courts should establish clear guidelines on seizure of cell phones and laptops by police: Vrinda Grover

Depending on the motion, the following guidelines may be considered by the Court:

1. Whenever possible, a prior authorization or order from a magistrate should be obtained before opening, examining and seizing digital/electronic devices.

2. In the event that the seizure is urgent, the reasons for not requesting authorization or prior orders must be recorded in writing and served on the owner of the device.

3. In either case, the material or the nature of the material sought to be examined or seized, its relevance and its connection to the offense intended or investigated must be specified as clearly as possible.

4. The device owner should not be forced to reveal their passwords and, in case of biometric encryption, should not be forced to unlock their devices.

5. At the time of seizure the hash value should be noted and ideally a copy of the hard drive should be taken, not the original, otherwise a copy of the hard drive should be given to the person in question or his representative

6. After seizure, the hard drive must be examined in the presence of the person to whom it belongs or from whom it was seized, as well as a neutral IT professional.

7. Documents, correspondence and other data, recognized by all parties as unrelated to the crime under investigation, shall be removed from the investigator’s copy in the presence of the representative of the accused and the independent professional and a new hash value must be registered. in a note setting out such a procedure.

Stating that the state should provide sufficient safeguards against undue interference in the exercise of fundamental rights, the petition states:

“The powers of search and seizure, in particular because they engage fundamental rights such as the right to privacy, the right against self-incrimination and the right to protection of privileged communications, must therefore be read and accompanied by adequate safeguards so that they are not abused to defeat those rights.It is imperative that this honorable Court lays down inviolable guidelines accordingly.

Read also : Courts should establish clear guidelines on seizure of cell phones and laptops by police: Vrinda Grover

Case Title: Ram Ramaswamy and Others v Union of India, WP(crl) 138/2021

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