The Centre has informed the Supreme Court that as law and order are state subjects, laying down national guidelines can only be accomplished after consultation with states as detailed Standard Operating Procedures and safeguards are included in the CBI manual regarding the seizure of electronic evidence.
In response to a request for guidelines regarding the search and seizure of electronic devices that are in line with international practices, the Union Ministry of Home Affairs (MHA) stated in an affidavit that the Indian Constitutional position on the subject is fundamentally different from other jurisdictions’ constitutional positions. MHA stated, “While the right to privacy exists in all jurisdictions worldwide, it may be regulated through statutory law, and there cannot be any blanket exclusions.”
According to the affidavit, “Law and order are constitutional obligations of the government and its law enforcement agencies…ensuring the rule of law and investigating and prosecuting crimes are intrinsic to any nation-state…it is a legitimate state interest to establish a robust, independent, and uninfluenced investigation and prosecution process”.
According to the government, “The State must prosecute and punish criminals on behalf of the people of the State, specifically the victims of the crime, as a cardinal rule of the criminal justice system.” Consequently, individual rights…must be balanced with the larger societal rights as well in order to balance out the social contract between the State and its citizens.
As stated by the MHA, searches and seizures of documents or electronic devices are clearly protected as they are part of “the procedures established by law”, are reasonable, are proportionate, and further the state’s legitimate interests. The court added that the “said processes fall well within the limits that were defined by the court in the case of K S Puttaswamy vs Union of India (privacy case)”.
It was noted in the affidavit that the court had previously determined that “the standard of reasonableness must be applied individually to each statute challenged, and no abstract standard or general pattern of reasonableness can be defined as applicable to each case”. Considering the nature of the crime, the mode of operation of criminals, and the procedural law within the constitutional limits, good international practices may be adopted or adapted to the Indian context.
According to the MHA, there are already guidelines in place in the field, and if common guidelines are to be adopted, they will need to be consulted with all stakeholders in a broader manner…It is submitted that specifically, given the federal structure and entries in the Seventh Schedule, it would be appropriate for States to participate in this consultative process.
A group of petitioners, Ram Ramaswamy, Sujata Patel, M Madhava Prasad, Mukul Kesavan, and Deepak Malghan, sought guidelines on how to handle academic work stored on digital devices.
According to the Ministry, the vast majority of apprehensions can be addressed by adhering to the CBI Manual, 2O2O…”, which “contains various provisions relating to the present subject matter and will substantially ease the petitioner’s apprehensions while balancing competing legitimate state interests within the framework of Indian constitutional and statutory laws.”
There are procedural standard operating procedures (SOPs) in place at most agencies on this subject matter, and the CBI Manual deals in detail with the subject of digital evidence and specifies a procedure along with significant safeguards that are under the statutory and constitutional provisions of the country, as stated by the MHA.
In regards to safeguarding the academic research of persons under investigation whose electronic devices have been seized, it is recommended that in appropriate cases and where the competing interests of investigating agencies permit, A cloned image of the hard drive of the devices seized by the investigating agency may be obtained by the accused under the section of the CrPC under the right of the accused to pursue their statutory rights before competent courts, subject to the order of the competent court.
The affidavit also says, “Considering the exigencies of the investigation, the varying degrees of sensitivity of the data, and the stage of the investigation in each case, it wouldn’t make any blanket order regarding the return of such documents to the people under investigation.”
Based on the Centre’s suggestions, it would be “appropriate” to give them to the relevant authorities in various states along with the CBI Manual before any guidelines are laid down on a national level because law and order and crime investigation are primarily state subjects.