New Delhi: The Union government on Thursday sought yet another adjournment from the Supreme Court bench hearing petitions on device seizures, on the excuse that its committee was still discussing suitable guidelines on the search and seizure of phones and other electronic devices. Even as the Supreme Court orally expressed discomfort at the repeated adjournments sought by the government, it recorded the statement of Additional Solicitor General S.V. Raju, representing the government, that the Union agencies will strictly adhere to the Central Bureau of Investigation Manual 2020 on search and seizure in the meantime, while giving government a further time of six weeks to finalise the guidelines.
The bench of Justice Sanjay Kishan Kaul, who is about to demit office later this month, and Justice Sudhanshu Dhulia was hearing a batch of writ petitions including one brought by well-known academics Ram Ramaswamy, Sujata Patel, M. Madhava Prasad, Mukul Kesavan and Deepak Malghan, represented by senior advocate Nitya Ramakrishnan, and another brought by Foundation for Media Professionals, represented by senior advocate Siddharth Agrawal. The matter is set to come up next for hearing on February 6.
The Wire has since had a chance to review some of the guidelines proposed as interim guidelines by the petitioners in the case and the provisions of the CBI Manual, 2020, which bears a ‘Restricted’ classification label.
The investigating agencies will now have to observe procedures such as generation of hash value for each device at the time of seizure of such devices, to be recorded in the seizure memo. For instance, one of the guidelines suggested by the petitioners read, “[t]he chain of custody of the material must be maintained, and the hash values of the devices must be recorded and verified at each transition. Each step must be documented and explained so that a third party should be able to replicate the process and arrive at the same result.”
This requirement is provided for under the manual detailing procedures of hash value generation at the time of seizure, recording of the same in the seizure memo, the opening of chain of custody reports at the time of seizure, and the hash value and the chain of custody reports being made available along with the devices to the forensic laboratory (Sections 16.19 and 16.23). The importance attached to the chain of custody is underlined in Section 12.24 where it says “[i]f it is not properly maintained, an item may become inadmissible in the court. Failure to substantiate the chain of custody may lead to serious questions regarding the authenticity and integrity of the evidence and the examination rendered upon it, making the whole process as an exercise in futility.” This is consistent with the petitioners’ suggestion that the evidence obtained without scrupulously following these safeguards to ordinarily not be admitted against any person accused of an offence in criminal proceedings.
Another key provision in the manual is the requirement of the investigating agency to avoid indiscriminate seizure. Section 9.12 of the manual states “…there should be no indiscriminate seizure of documents in any case. It should be borne in mind that seizure of records may cause dislocation of work in the office concerned. Hence, records should not be taken into possession as a matter of routine. The IO should seize/requisition the records only if the same are essential for the purpose of investigation. In many cases, examination and scrutiny of the records on the spot might suffice.” Petitioners have suggested that no seizure or search of personal digital device be effected without a judicial warrant.
As this was mentioned in court on Thursday, ASG Raju expressed a severe disagreement and spoke of leakages as though the requirement of a search warrant was inimical to law enforcement. He was perhaps, unmindful of the fact that the CBI Manual itself makes obtainment of a judicial warrant ‘preferable’ before search. If it is to be followed, the agency would presumably have to justify any breach of the preferred mode.
However, other key demands of the petitioners remain unmet by the CBI Manual. The Manual also does not appear to have any safeguards relating to passwords/credentials coercion, and the presence of the device owner during examination of the devices or data, and the need for segregation privileged material – such as journalistic material, privileged correspondence such as between an attorney and a client, or a doctor and a patient, communications between spouses as also all irrelevant and personal material. Other than deprecating any “indiscriminate seizure of documents”, the CBI Manual does not make any provision to ensure that this is not done. Yet, agencies must now be mindful of this principle, which they have all along been ignoring till date,
Another of the petitioners’ asks is a definitive guideline on timelines for return of digital devices, and does not appear to be addressed in the CBI Manual, although it has a general directive for expeditious return of seized material (whether digital or otherwise) in Section 9.16. However, this concern may somewhat be mitigated by the mandate under Section 9.41 that investigation should be carried out only on the mirror image of the data obtained from the devices – thereby obviating the need for the investigation agencies to retain the devices after the mirroring process is complete. It may also be noted that Section 9.16 of the Manual lays down an outer limit of a fortnight for the preparation of the CBI report and mandate the obtaining of orders from the magistrate under Section 457 of the CrPC for disposal or return of seized devices.
Having said this, Thursday’s order of the court is certainly a step forward in bringing some discipline to investigation practices around search and seizure of personal digital devices. Investigating agencies are not known to observe many of these safeguards. Reportage on the recent cases involving the founding editors of The Wire and the journalists associated with NewsClick stands testament to this. For instance, neither were hash value reports provided at the time of seizure, nor were the devices returned in a timely manner to the device owners.
