The story so far: The Special Cell of Delhi Police on October 3 raided the homes and offices of several journalists including columnists and commentators associated with the news portal NewsClick in an alleged terror case. The raids were followed by the arrest of Prabir Purkayastha, founder and Editor-in-Chief of the news portal and its Human Resources head Amit Chakraborty.
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The journalists were questioned about the Delhi communal riots and the CAA agitation of 2019-20, the farmers protest of 2020-21, and whether they used encrypted phone messaging applications such as Signal. The phones and laptops of all the employees, contributors and consultants of the news portal were also seized. This incident has reignited the debate on the right to privacy and the right against self-incrimination in the context of actions by law enforcement agencies in the name of security.
Experts have flagged that the police regularly overreach their powers in search and seizures and that incriminating evidence is planted in digital devices by not adhering to the documentation protocol at the time of seizure. Even as the trial is yet to begin in the Bhima Koregaon case, a series of investigative reports published by American digital forensics firm Arsenal Consulting has shown that crucial evidence cited in the chargesheet of the case was planted on the devices seized from three of the activists — Rona Wilson, Surendra Gadling and Stan Swamy.
In India, the law does not provide immunity to journalists against forcible disclosure of their communication, whether with sources or other parties. Moreover, there is an absence of a clear legal framework that addresses the distinct and vulnerable nature of digital evidence and how such evidence is highly susceptible to misuse due to the broad powers accorded to investigating agencies.
What are the existing laws?
Section 91 of the Code of Criminal Procedure, 1973 (CrPC) confers concurrent powers upon police and magistrates to direct the production of “any document or other thing” that is “necessary and desirable” for the purpose of an investigation. In case it is suspected that a person will not produce such a document, a search warrant can be issued by the court under Section 93 of the CrPC. However, the Supreme Court in rulings such as Shyamlal Mohanlal Choksi v. State of Gujarat (1964) and S. Kuttan Pillai v. Ramakrishnan (1979) has held that a notice under Section 91 of the CrPC cannot be issued to an accused as the same amounts to compelling the accused to be a witness against himself.
The power to conduct a search without a warrant is permitted under Section 165 of the CrPc when an immediate search is necessary — but even in such cases, the police are required to record reasons in writing including the specific description of the thing that is being searched for. When it comes to seizures, Section 102 of the CrPC empowers the police to seize ” any property” without a warrant which may be suspected to have been stolen, or which may be found under circumstances that create suspicion of the commission of any offence.
In order to protect the authenticity of the seized electronic devices, the Information Technology Act, 2000, mandates the generation of a hash value of the confiscated items. A hash value is the digital equivalent of a fingerprint and records change if contents in the device are tampered with after seizure. Investigating authorities are bound to record such hash values in the seizure memo and submit them to the court as part of the chargesheet.
Pending petitions seek detailed guidelines
In November last year, the Supreme Court imposed a cost of ₹25,000 on the Centre for not filing, in the stipulated period, a counter affidavit in response to a petition by academicians seeking detailed guidelines on the search and seizure of electronic devices by investigating agencies. Objecting to the Centre’s cavalier approach, the top Court remarked, “Saying ‘not maintainable’ is not enough… These (devices) have personal contents and we have to protect this. People live on this.”
The Centre contended that the search and seizure of digital devices was not a violation of the right to privacy, as it is “not absolute” and can be subjected to restrictions. Highlighting that the CBI manual contains safeguards in the form of a detailed Standard Operating Procedure, the Centre said that national guidelines can be laid down only after consultation with States, as law and order is a State subject.
Another petition filed by the Foundation for Media Professionals is also pending before the Supreme Court and contends that the existing rules do not regulate police excesses during search or seizure of digital devices—thereby enabling dubious practices.
Can journalists be compelled to share passwords?
Article 20(3) of the Constitution protects the right against self-incrimination, stating that no person accused of any offence can be compelled to be a witness against themselves. However, the Supreme Court has restricted this right to only testimonial evidence such as taking polygraph tests while non-testimonial or physical evidence such as fingerprints or handwriting samples lie outside its ambit.
In State of Bombay v. Kathi Kalu Oghad (1961), the apex court reasoned that self-incrimination must mean conveying information based upon “personal knowledge” and cannot include the mechanical process of producing documents in court which may throw a light on any of the points in controversy. Even in the landmark verdict K.S Puttaswamy v. Union of India (2017), it was held that the disclosure of passwords, etc. in a criminal investigation is covered under the “legitimate interests of the State” exception and does not violate privacy.
Similarly, the Karnataka High Court in March 2021 held that a direction to provide passwords or biometrics to unlock seized devices would not violate Article 20(3) since it is in the “nature of a direction to produce a document” and that investigating agencies have the right to prove allegations through cogent evidence. The court also issued extensive guidelines envisaging that a qualified forensic examiner would accompany the team conducting searches of electronic devices like smartphones, laptops, or even e-mails. Relying on this ruling, the Kerala High Court in January last year directed Malayalam actor Dileep and his two close relatives to hand over mobile phones to the police in a sexual assault and criminal conspiracy case.
More recently, last year, the Supreme Court asked Ajay Bharadwaj, an accused in the GainBitcoin scam, to provide the username and password to access his cryptowallet and make full disclosures to the investigating agency.
Taking a contrary stance, a Delhi court in CBI v. Mahesh Kumar Sharma (2022) ruled that investigating agencies do not have the right to procure passwords without consent as it would amount to self-incrimination. It reasoned that when an accused is asked to disclose his password, he is required to engage his mental faculty and thus the information gathered from such an exercise would constitute a ‘testimonial fact’.
Are journalists exempt from disclosing their sources?
Although the Indian Evidence Act, 187, protects the disclosure of certain communications— such as those between spouses (Section 122), and between a lawyer and his client (Section 126), journalists do not have any such privileges. In 1983, the Law Commission of India recommended amending the Indian Evidence Act to include journalistic privilege, however, this has not been acted upon. Section 15(2) of the Press Council of India Act, 1978 says that no journalist can be compelled to disclose their sources; however, this is only limited to proceedings before the Council.
A Delhi court in January held that the Central Bureau of Investigation (CBI) was within its powers to direct journalists to reveal the source of their information while doing a story. The order was passed while rejecting a closure report filed by the CBI, which had been tasked with probing into how certain news channels had aired reports related to a disproportionate assets case against the late Mulayam Singh Yadav and his family members on February 9, 2009, a day before the scheduled date of hearing in the Supreme Court. Similarly, in 2020, the Delhi High Court asked Zee News to file an affidavit disclosing its source while hearing a plea moved by Asif Tanha, an accused in the 2020 Delhi riots, alleging that the Delhi Police had leaked his confession to media houses.
While the Supreme Court has made some observations on protecting journalistic sources, it has not taken a definitive stance on the matter. In the Pegasus case, where military-grade spyware was used to snoop on journalists, activists, and intellectuals, the top court observed — “Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”
Section 36 of the recently enacted Digital Personal Data Protection Act, 2023, empowers the Union government to ask any data fiduciary [any entity that processes any personal data] to “furnish any such information as it may call for”. When applied to journalists, this provision could include within its ambit sensitive data pertaining to journalistic sources and whistle-blowers. Although previous versions of the law exempted journalistic work from certain obligations, however, such exemptions have been done away under the Act.
The challenges today
A major concern pertaining to the confiscation of electronic devices belonging to journalists is maintaining the integrity of the electronic material seized. Senior advocate Geeta Luthra pointed out that the evidentiary value of the seized device loses its sanctity if it is not sealed forthwith. She recommended that a cloned copy of the device be given to the accused at the time of seizure, instead of the time of filing of the chargesheet, as is the mandate of the law.
Experts have also flagged that existing criminal laws place stringent restrictions on the powers of accused persons to introduce new evidence during trials. According to advocate Abhinav Sekhri, the Unlawful Activities Prevention Act makes it even more difficult for court to rely upon such material to grant bail to accused persons.
“Consider the Bhima-Koregaon case itself as an example—arguments on charge are yet to be concluded, and if charges are framed then years of prosecution evidence follow. Only after this, and the recording of statements by accused persons (under section 313 of the Code of Criminal Procedure 1973), will the opportunity come for leading the material that hypothetically brings down the house of cards,” wrote Mr. Sekhri.
