In a strongly worded statement responding to recent forensic reports that reveal the distinct possibility of outside planting and tampering of evidence onto computer devices of persons thereafter ‘accused’ of terrorism, the CCG has demanded legislative safeguards to ensure checks and balances so that police and investigative agencies and the handling of electronic evidence by these agencies are conducted in a manner that conforms to democratic norms, ensuring that the rights of the individual under the Constitution of India are not infringed in any way.
The statement issued today states:
1. Justice is the most fundamental of constitutional principles and criminal justice is the foundation of law and order in a civilized society. Fair and impartial investigation of crimes is at the root of criminal justice. The reports that the police and other investigative agencies may have violated constitutional guarantees and judicial pronouncements in the practices adopted in search and seizure operations, as well as the possibility that they may have been party to planting incriminating material in personal digital devices and harvesting evidence therefrom, have caused us grave concern.
2. Recent reports of false evidence being planted remotely in the personal computer of one of the accused in a long-dragging sedition case are alarming. It is entirely possible that a similar situation is prevalent with regard to the evidence being used in many other UAPA cases. Such blatantly illegal practices could sound the death knell of the criminal justice system in the country. Hence the need for issuing this statement.
3. There are several examples that cause deep disquiet about the handling of digital evidence, particularly evidence to be found in personal digital devices. If justice is to prevail, the awesome capabilities that present-day surveillance and spyware technology offers investigative agencies must be circumscribed by strict, meaningful and enforceable statutory safeguards.
4. There are also persistent concerns about investigative agencies seizing, confiscating or searching through the entire contents of personal digital devices such as mobile phones and laptops of not only accused persons but even those called for investigation or questioning.
5. We wish to state that the extant generic search and seizure provisions in the Code of Criminal Procedure do not address the issues that arise in the context of search, seizure and handling of modern day personal devices.
6. It is therefore imperative that urgent legislative changes are put in place to guide the investigative agencies with due regard to and adherence to the following principles:
i) Right to privacy
The landmark judgment of the nine-judge bench of the Supreme Court in Puttaswamy’s case makes privacy a fundamental right. This judgment prohibits the investigative agencies seeking transcripts of communications-including Call recordings, WhatsApp/ Telegram/ Skype/ Messenger Chat logs and similar communication records in a wholesale manner without due regard to having to demonstrate necessity and proportionality and respect for privacy of correspondence.
ii) Right against self-incrimination
The right against self-incrimination is expressly protected under Article 20(3) of the Constitution and has also received statutory reinforcement under Section 132 of the Evidence Act and Section 161(2) of the Criminal Procedure Code. It is applicable at the stage of investigation and applies equally to witnesses as well as to the accused. Thus, the practice of investigative agencies acquiring passwords to unlock the personal devices or accounts is violative of the right against self-incrimination.
iii) Protection of Privileged Communication
Indiscriminate access to personal information, particularly personal communication, also involves the question of the right of protection of privileged communications, such as communication with one’s spouse, doctor, lawyer etc. At the time of investigation, safeguards must be in place to ensure that there is specific application of mind in respect of each unit of information searched for or seized to ascertain whether such communication has a reasonable likelihood of being privileged.
iv) Integrity of Electronic Evidence
Another important issue is the minimum standards to be adhered to in order to establish the integrity of the electronic material or device that has been taken into custody by the investigative agency. Forensic processes adopted by the investigation agencies also must look for and rule out both pre-seizure and post-seizure tampering of such digital devices.
v) Maintaining Transparency
Finally, there is need for full transparency with regard to the technical capabilities that the investigative agencies have either developed and/or acquired for the purposes of either surveillance or processing of digital evidence. The capabilities of our investigative agencies and the methods and processes they employ in relation to surveillance, digital data recovery, replication, storage and destruction must be proactively disclosed.
7. We are of the considered view that whenever the prosecution relies on such electronic/digital evidence, these should be taken cognizance of only after authentication by a Statutory Expert Body set up for the purpose. The law should also provide that if the Statutory Expert Body comes to the conclusion that there has been mala fide planting or manipulation of such evidence, then it must result in prosecution of the perpetrators under the relevant provisions of Chapter XI of the Indian Penal Code.
8. We, therefore, urge the Government of India to make necessary legislative changes on the above lines to prevent planting of incriminating material and false evidence in personal digital devices and lay down the overall practice and procedure of handling electronic evidence in a manner that will protect privacy, privileged communications, the right against self-incrimination and the integrity of the evidence and ensure complete transparency in order to ensure the constitutional guarantees of rendering justice to all.
The names of the 92 signatories are given below:
Anita Agnihotri | IAS (Retd.) | Former Secretary, Department of Social Justice Empowerment, GoI | |
Salahuddin Ahmad | IAS (Retd.) | Former Chief Secretary, Govt. of Rajasthan | |
K. Saleem Ali | IPS (Retd.) | Former Special Director, CBI, GoI | |
S.P. Ambrose | IAS (Retd.) | Former Additional Secretary, Ministry of Shipping & Transport, GoI | |
Anand Arni | R&AW (Retd.) | Former Special Secretary, Cabinet Secretariat, GoI | |
Mohinderpal Aulakh | IPS (Retd.) | Former Director General of Police (Jails), Govt. of Punjab | |
G. Balachandhran | IAS (Retd.) | Former Additional Chief Secretary, Govt. of West Bengal | |
Vappala Balachandran | IPS (Retd.) | Former Special Secretary, Cabinet Secretariat, GoI | |
Gopalan Balagopal | IAS (Retd.) | Former Special Secretary, Govt. of West Bengal | |
Chandrashekhar Balakrishnan | IAS (Retd.) | Former Secretary, Coal, GoI | |
T.K. Banerji | IAS (Retd.) | Former Member, Union Public Service Commission | |
Sharad Behar | IAS (Retd.) | Former Chief Secretary, Govt. of Madhya Pradesh | |
Aurobindo Behera | IAS (Retd.) | Former Member, Board of Revenue, Govt. of Odisha | |
Ravi Budhiraja | IAS (Retd.) | Former Chairman, Jawaharlal Nehru Port Trust, GoI | |
Sundar Burra | IAS (Retd.) | Former Secretary, Govt. of Maharashtra | |
Maneshwar Singh Chahal | IAS (Retd.) | Former Principal Secretary, Home, Govt. of Punjab | |
Rachel Chatterjee | IAS (Retd.) | Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh | |
Gurjit Singh Cheema | IAS (Retd.) | Former Financial Commissioner (Revenue), Govt. of Punjab | |
Anna Dani | IAS (Retd.) | Former Additional Chief Secretary, Govt. of Maharashtra | |
Surjit K. Das | IAS (Retd.) | Former Chief Secretary, Govt. of Uttarakhand | |
Vibha Puri Das | IAS (Retd.) | Former Secretary, Ministry of Tribal Affairs, GoI | |
P.R. Dasgupta | IAS (Retd.) | Former Chairman, Food Corporation of India, GoI | |
Pradeep K. Deb | IAS (Retd.) | Former Secretary, Deptt. Of Sports, GoI | |
Nitin Desai | IES (Retd.) | Former Secretary and Chief Economic Adviser, Ministry of Finance, GoI | |
M.G. Devasahayam | IAS (Retd.) | Former Secretary, Govt. of Haryana | |
Sushil Dubey | IFS (Retd.) | Former Ambassador to Sweden | |
A.S. Dulat | IPS (Retd.) | Former OSD on Kashmir, Prime Minister’s Office, GoI | |
K.P. Fabian | IFS (Retd.) | Former Ambassador to Italy | |
Prabhu Ghate | IAS (Retd.) | Former Addl. Director General, Department of Tourism, GoI | |
Arif Ghauri | IRS (Retd.) | Former Governance Adviser, DFID, Govt. of the United Kingdom (on deputation) | |
Gourisankar Ghosh | IAS (Retd.) | Former Mission Director, National Drinking Water Mission, GoI | |
Suresh K. Goel | IFS (Retd.) | Former Director General, Indian Council of Cultural Relations, GoI | |
S.K. Guha | IAS (Retd.) | Former Joint Secretary, Department of Women & Child Development, GoI | |
H.S. Gujral | IFoS (Retd.) | Former Principal Chief Conservator of Forests, Govt. of Punjab | |
Meena Gupta | IAS (Retd.) | Former Secretary, Ministry of Environment & Forests, GoI | |
Wajahat Habibullah | IAS (Retd.) | Former Secretary, GoI and former Chief Information Commissioner | |
Sajjad Hassan | IAS (Retd.) | Former Commissioner (Planning), Govt. of Manipur | |
Siraj Hussain | IAS (Retd.) | Former Secretary, Department of Agriculture, GoI | |
Najeeb Jung | IAS (Retd.) | Former Lieutenant Governor, Delhi | |
Ajai Kumar | IFoS (Retd.) | Former Director, Ministry of Agriculture, GoI | |
Sudhir Kumar | IAS (Retd.) | Former Member, Central Administrative Tribunal | |
Subodh Lal | IPoS (Resigned) | Former Deputy Director General, Ministry of Communications, GoI | |
B.B. Mahajan | IAS (Retd.) | Former Secretary, Deptt. of Food, GoI | |
Harsh Mander | IAS (Retd.) | Govt. of Madhya Pradesh | |
Amitabh Mathur | IPS (Retd.) | Former Director, Aviation Research Centre and former Special Secretary, Cabinet Secretariat, GoI | |
Lalit Mathur | IAS (Retd.) | Former Director General, National Institute of Rural Development, GoI | |
Aditi Mehta | IAS (Retd.) | Former Additional Chief Secretary, Govt. of Rajasthan | |
Shivshankar Menon | IFS (Retd.) | Former Foreign Secretary and former National Security Adviser | |
Sonalini Mirchandani | IFS (Resigned) | GoI | |
Sunil Mitra | IAS (Retd.) | Former Secretary, Ministry of Finance, GoI | |
Avinash Mohananey | IPS (Retd.) | Former Director General of Police, Govt. of Sikkim | |
Deb Mukharji | IFS (Retd.) | Former High Commissioner to Bangladesh and former Ambassador to Nepal | |
Shiv Shankar Mukherjee | IFS (Retd.) | Former High Commissioner to the United Kingdom | |
P.G.J. Nampoothiri | IPS (Retd.) | Former Director General of Police, Govt. of Gujarat | |
Surendra Nath | IAS (Retd.) | Former Member, Finance Commission, Govt. of Madhya Pradesh | |
P. Joy Oommen | IAS (Retd.) | Former Chief Secretary, Govt. of Chhattisgarh | |
Amitabha Pande | IAS (Retd.) | Former Secretary, Inter-State Council, GoI | |
Alok Perti | IAS (Retd.) | Former Secretary, Ministry of Coal, GoI | |
R. Poornalingam | IAS (Retd.) | Former Secretary, Ministry of Textiles, GoI | |
Rajesh Prasad | IFS (Retd.) | Former Ambassador to the Netherlands | |
Sharda Prasad | IAS (Retd.) | Former Director General (Employment and Training), Ministry of Labour and Employment, GoI | |
R.M. Premkumar | IAS (Retd.) | Former Chief Secretary, Govt. of Maharashtra | |
T.R. Raghunandan | IAS (Retd.) | Former Joint Secretary, Ministry of Panchayati Raj, GoI | |
N.K. Raghupathy | IAS (Retd.) | Former Chairman, Staff Selection Commission, GoI | |
V.P. Raja | IAS (Retd.) | Former Chairman, Maharashtra Electricity Regulatory Commission | |
C. Babu Rajeev | IAS (Retd.) | Former Secretary, GoI | |
M.Y. Rao | IAS (Retd.) |
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Satwant Reddy | IAS (Retd.) | Former Secretary, Chemicals and Petrochemicals, GoI | |
Vijaya Latha Reddy | IFS (Retd.) | Former Deputy National Security Adviser, GoI
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Julio Ribeiro | IPS (Retd.) | Former Adviser to Governor of Punjab & former Ambassador to Romania | |
Aruna Roy | IAS (Resigned) |
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Manabendra N. Roy | IAS (Retd.) | Former Additional Chief Secretary, Govt. of West Bengal | |
A.K. Samanta | IPS (Retd.) | Former Director General of Police (Intelligence), Govt. of West Bengal | |
Deepak Sanan | IAS (Retd.) | Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh | |
G. Sankaran | IC&CES (Retd.) | Former President, Customs, Excise and Gold (Control) Appellate Tribunal | |
S. Satyabhama | IAS (Retd.) | Former Chairperson, National Seeds Corporation, GoI | |
N.C. Saxena | IAS (Retd.) | Former Secretary, Planning Commission, GoI | |
Ardhendu Sen | IAS (Retd.) | Former Chief Secretary, Govt. of West Bengal | |
Abhijit Sengupta | IAS (Retd.) | Former Secretary, Ministry of Culture, GoI | |
Aftab Seth | IFS (Retd.) | Former Ambassador to Japan | |
Ashok Kumar Sharma | IFoS (Retd.) | Former MD, State Forest Development Corporation, Govt. of Gujarat | |
Ashok Kumar Sharma | IFS (Retd.) | Former Ambassador to Finland and Estonia | |
Navrekha Sharma | IFS (Retd.) | Former Ambassador to Indonesia | |
Raju Sharma | IAS (Retd.) | Former Member, Board of Revenue, Govt. of Uttar Pradesh | |
Ramesh Inder Singh | IAS (Retd.) | Former Chief Secretary, Govt. of Punjab and former Chief Information Commissioner, Punjab | |
Sujatha Singh | IFS (Retd.) | Former Foreign Secretary, GoI | |
Jawhar Sircar
| IAS (Retd.)
| Former Secretary, Ministry of Culture, GoI, & former CEO, Prasar Bharati | |
Thanksy Thekkekera | IAS (Retd.) | Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra | |
P.S.S. Thomas | IAS (Retd.) | Former Secretary General, National Human Rights Commission | |
Geetha Thoopal | IRAS (Retd.) | Former General Manager, Metro Railway, Kolkata | |
Hindal Tyabji | IAS (Retd.) | Former Chief Secretary rank, Govt. of Jammu & Kashmir | |
Ramani Venkatesan | IAS (Retd.) | Former Director General, YASHADA, Govt. of Maharashtra |