Stating the CBI manual has detailed Standard Operating Procedure and safeguards regarding the seizure of electronic evidence, the Centre has told the Supreme Court that laying down guidelines at a national level can be done only after consultation with states as law and order is a state subject.
Responding to a plea which sought framing guidelines regarding search and seizure of electronic devices in tune with international practises, the Union Ministry of Home Affairs (MHA) said in an affidavit the “Indian Constitutional position” on the subject “is naturally different from the constitutional position in other jurisdictions”. “While the right to privacy exists in all jurisdictions across the world, the regulation of same through statutory law is permissible and there can be no blanket exclusions,” the MHA said.
The affidavit said, “It is the constitutional obligation of the Government and its law enforcement agencies to ensure law and order….it is intrinsic in any nation-state to ensure rule of law and investigate and prosecute for crimes…it is a legitimate state interest to implement an honest, uninfluenced and strong investigative and prosecutorial process”.
The government said, “It is a cardinal rule of the criminal justice system that the State prosecutes and punishes for and on the behalf of the people of the State and specifically the victims of the crime. This representative form of litigation goes to the root of the social contract between the State and its residents….therefore, the individual rights…is to be necessarily counterbalanced with the larger societal rights as well”.
The MHA said search and seizure of documents or electronic devices are clearly protected as they fall under the “procedure established by law”, are reasonable, are duly proportionate, and “furthers a legitimate state interest”. It added the “said processes are well within the judicially defined limits in the case of K S Puttaswamy vs Union of India (privacy case).”
The affidavit pointed out the court had laid down in the past that “the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases”. The government suggested that “good international practises could be adopted or adjusted to the Indian context, keeping in view the nature of the crime, modus operandi of criminals and the procedural law within the constitutional boundaries”.
Stating that there are already guidelines holding the field, the MHA said, “If common guidelines are to be adopted, then it may only be adopted after wider consultation among all the Stakeholders…It is submitted that specifically, considering the federal structure and the entries in the Seventh Schedule, it would be appropriate to take States in the said consultative process”.
The petitioners—Ram Ramaswamy, Sujata Patel, M Madhava Prasad, Mukul Kesavan, and Deepak Malghan—had expressed apprehensions over academic work stored in digital devices when they are seized by investigative agencies and sought to lay down guidelines in this regard.
On this, the Ministry said the vast majority of the apprehensions “can be addressed by adherence to the CBI Manual, 2O2O…” which “has various provisions dealing with the present subject matter and would substantially allay the apprehensions of the Petitioner while balancing the competing legitimate state interest within the confines of Indian constitutional and statutory framework”.
“Most agencies have the procedural SOPs (Standard Operating Procedures) on the subject matter and the CBI Manual, in a detailed manner, deals with the subject of digital evidence and designs a procedure along with significant safeguard which is in tune with the statutory and constitutional provisions in the country,” the MHA said.
“As far as the issue concerning the safeguarding of academic research of persons under investigation whose electronic devices have been seized is concerned, it is suggested that in appropriate cases and where the competing interest of investigating agency permit, the accused may be allowed to pursue their statutory rights before competent courts under the section of the CrPC in order to seek cloned images of the hard drive of the devices which have been seized by the investigating agency, subject to the orders from the competent court,” it added.
The affidavit also said, “Considering the exigencies of the investigation and the varying degrees of sensitivity of the data and the stage of investigation arise in each case, it would be inappropriate to pass any blanket order regarding the return of such documents to persons under investigation”.
The Centre said “it would be appropriate” that its “suggestions…along with the relevant portions and the CBI Manual be provided to the relevant authority in various States before any exercise of laying down guidelines at a national level is considered as law and order and investigation of crime is primarily a State subject”.