The Supreme Court of India circulated interim guidelines for the seizure of electronic devices by investigating agencies on November 9, 2023, to the Union government and the states for their consideration. The guideline is a welcome step towards protecting individual rights in the digital age. These guidelines, which are expected to be finalized after considering feedback from the states, aim to balance the need for investigation with the protection of fundamental rights, particularly the right to privacy.
The guidelines aim to balance the need for investigation with the protection of fundamental rights, particularly the right to privacy. They stipulate that:
- Seizure of electronic devices should be done only as a last resort and only when absolutely necessary for the investigation.
- A detailed inventory of the seized items must be prepared.
- The seized devices must be examined by an independent agency in the presence of the owner or their representative.
- All personal, privileged, and irrelevant material must be identified and returned immediately.
- The device must be returned to the owner as soon as possible.
As an advocate, I have been witnessing the increasing use of electronic devices by individuals to store personal and sensitive information. While this has undoubtedly brought about many benefits, it has also created new challenges for law enforcement agencies. In the past, investigators could simply seize physical evidence, such as diaries or letters. However, with the increasing use of electronic devices, investigators now have access to a vast amount of personal data.
I believe that the Supreme Court’s interim guidelines are a positive step towards protecting individual rights in the digital age. I urge the Union government to finalize these guidelines as soon as possible and to ensure that they are implemented effectively. In addition to the above, I would like to add that the Supreme Court’s interim guidelines are also in line with the principles of proportionality and necessity. These principles require that the government’s interference with the right to privacy must be proportionate to the legitimate aim being pursued and that there is no less intrusive way of achieving that aim.
I believe that the Supreme Court’s interim guidelines are a necessary and proportionate response to the challenges of protecting individual rights in the digital age. I urge law enforcement agencies to follow these guidelines closely and to respect the privacy of individuals.
The right to privacy is a fundamental right protected by the Constitution of India. It is enshrined in Article 21 of the Constitution, which guarantees the right to life and personal liberty. The right to privacy has been interpreted by the Supreme Court to include the right to be free from unwarranted disclosure of personal information. The interim guidelines are in line with other existing statutes that protect individual rights in the digital age, namely The Information Technology Act, 2000; The Indian Telegraph Act, 1885; The Code of Criminal Procedure, 1973.
In the landmark case of Ritesh Sinha v. State of Uttar Pradesh (2022), the Supreme Court held that the right to privacy is a fundamental right. Furthermore, in the case of K.S. Puttaswamy (W) v. Union of India (2017) the Supreme Court held that the right to privacy is a fundamental right guaranteed under the Constitution of India. The Court recognized that the right to privacy encompasses a wide range of rights, including the right to be free from unwarranted disclosures of personal information.
In addition to the provisions mentioned above, I would like to add the following suggestions:
- Investigators should be required to obtain a warrant before seizing an electronic device.
- Individuals should be given the opportunity to challenge the seizure of their electronic devices.
- Strong penalties should be imposed on investigators who violate the guidelines.
I believe that these additional measures would further strengthen the protection of individual rights in the digital age.
The Supreme Court’s interim guidelines for the seizure of electronic devices are a welcome step towards protecting individual rights in the digital age. I urge the Union government to finalize these guidelines as soon as possible and to ensure that they are implemented effectively. I believe that the additional measures I have suggested would further strengthen the protection of individual rights in the digital age.
Author
Tammana Bahl
Email: tammana@oberoilawchambers.com
Contact: +91 8360347585