The Supreme Court recently imposed costs on the Union Government for failing to file counter-affidavit in a writ petition seeking guidelines for the seizure of personal electronic devices by investigating agencies. The government had filed an affidavit earlier, however, the court was not happy with it and directed that new affidavit be filed as proper reply to the petition.

“We are not satisfied with the counter and we seek a new and proper reply”, bench of Justices SK Kaul and AS Oka had said. The bench said that the court will take on record the new affidavit only after the cost of Rs. 25,000 is deposited with the court. The bench had given the government two weeks’ time to file the new affidavit, which it had failed to file and hence the cost was imposed. The matter will now be heard on December 5.

The petition has been filed by academicians, namely, Ram Ramaswamy (retired JNU Professor), Sujata Patel (Distinguished Professor at Savitribai Phule Pune University), M Madhava Prasad (Professor of Cultural Studies at English and Foreign Languages University, Hyderabad),Mukul Kesavan (Delhi based writer) and Deepak Malghan (theoretical ecological economist).

The petition seeks clear guidelines from the Centre with regards to seizure, examination and preservation of personal digital and electronic devices and their contents thereof and also focuses on right to privacy, right against self-incrimination, protection of privileged communication, integrity of electronic material and the return of copies of seized material to the accused or person under the investigation.

The Supreme Court order may be read here:

Unlawful seizures

In August Delhi Deputy CM Manish Sisodia’s phone and laptop were seized by the CBI while conducting a raid at his residence. Early November, Delhi Police seized 16 electronic devices from the residences and office linked the to the staff of The Wire. In Delhi, searches were carried out on Monday at the portal’s office, and the homes of founding editors Siddharth Varadarajan and MK Venu and deputy editor Jahanvi Sen. In Mumbai, founding editor Siddarth Bhatia’s house was searched.

Hard disks from two computers used by the company’s accounts staff were also seized. The raiding teams reportedly sought, and took, passwords to official and personal email accounts belonging to one or more staffers, and asked some of those raided to disable passcodes from their devices.

In June, when journalist and activist Teesta Setalvad was forcibly taken into custody by the Gujarat ATS, they had also seized her mobile phones at her home and in absence of any legal procedure laid out for the same, these devices were seized by them officers as per their own whims. No panchnama was made for having seized her phones either. Worse, seizing the phones and or other devices without recording the hash value makes these prone to post facto tampering.

What is Hash Value?

While speaking to the media, The Wire editor Vardarajan had stated that the police had not shared the hash value of the devices seized despite insisting upon the same.

To ensure that data has not been tampered with, hashing is used as a mathematical function. It can be thought of as a digital fingerprint of an electronic record. For instance, if one runs a hashing function on “Report”, it could be hashed as R$c. Even a slightest change in the input – “rEport” instead of “Report” – would result in a change in hash. This is a standard technique used in digital forensics to ensure the integrity of digital evidence. Even the slightest activity on the storage device will lead to significant changes in the hash value, reported News Laundry.

Lack of sanctioned legal procedure

Without any clear guidelines in the Criminal procedure Code (CrPC) regarding seizing electronic devices,  the investigating agencies are taking such material from suspects or accused persons in a rather haphazard manner which, in most cases, amounts to violation of one’s right to privacy and most importantly, right against self-incrimination. This point was recently highlighted by a Sessions Court in Delhi which held that revealing password of computer amounted to self-incrimination.

In its July 2018 report, the Committee of Experts on a Data Protection Framework For India stressed on “informed consent” for processing of personal data and recommended, besides a high-powered statutory authority for enforcement, deterrent penalties for wrongful processing of data. Chairman of the committee, Supreme Court Justice (retired) B.N. Srikrishna, told Article 14 that the absence of a law on protecting data privacy opens the gates for police to interpret existing rules on search and seizure.

“Under the CrPC, the police need to obtain a warrant to enter your house or arrest you. The same principle should apply if they’re dealing with data, because data privacy is also a fundamental right under Article 21. It is as sacrosanct as one’s right to life and liberty, both of which are protected under Article 21,” said Justice Srikrishna while speaking to Article 14

As reported by LiveLaw, to aid the government in formulating these guidelines, the petitioners have provided some guidelines for consideration:

1. As far as possible, prior permission or order from a Judicial Magistrate should be attained before opening, examining and seizing digital/electronic devices .
2. In case the seizure is urgent, the reasons for not seeking prior permission or orders should be recorded in writing and served upon the owner of the device
3. In either case, the material or nature of the material sought to be examined or seized, its relevance and link with the offence anticipated or being investigated should be specified with as much clarity as possible
4. The owner of the device should not be compelled to reveal his passwords, and in case of biometric encryption, should not be forced to unlock his devices.
5. At the time of seizure, the hash value should be noted and ideally, a copy of the hard drive should be taken, and not the original, else copy of the hard-drive has to be given to the person whose device it is or to his representative
6. After seizure, the hard disk should be examined in the presence of the person whose device it is or from whom it was seized, as also a neutral computer professional.
7. Material, mails and other data, agreed to by all sides as irrelevant to the crime under investigation, should be removed from the investigator’s copy in the presence of the representative of the accused and the independent professional and a renewed hash value should be recorded in a memo drawing up such proceedings.

Password and self-incrimination

The Delhi district court had held that the accused cannot be compelled to provide any password to his computer as he is protected by Article 20(3) of the Constitution of India as well as Section 161(2) of Cr.P.C.

The court held that Even if there is apprehension that the data revealed after entering the password may be incriminating, the accused has the right to not give such password to the investigating agency as per section 161(2) of CrPC which uses the words “tendency to expose him to a criminal charge or to a penalty or forfeiture.”

Evidence obtained by illegal means can still be used in the court in certain circumstances, hence if after being forced to reveal password, incriminating data is revealed, it will amount to self-incrimination by the accused.

Karnataka High Court ruling

In March 2021, Justice Suraj Govindaraj of the Karnataka High Court while dealing with a petition (Writ Petition no. 11759/2020) laid out certain guidelines for seizure of electronic devices in much detail:

Personal computer/Laptop

1. When carrying out a search of the premises as regards any electronic equipment smart phone or e-mail account the search team to be accompanied by a qualified forensic examiner.
2. when carrying out a search of the premises the investigating officer should not use the computer or attempt to search a computer for evidence. The usage of the computer and/or search should be conducted by a properly authorized and qualified person like a properly qualified forensic examiner
3. At the time of search the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power network etc are captured in such photographs
4. The front and back of the computer and or the laptop while connected to all the peripherals to be taken.
5. A diagram should be prepared showing the manner in which the computer and her laptop is connected.
6. If the computer or laptop is in the power off mode, the same should not be powered on.
7. If the computer is powered on and the screen is blank the mouse could be moved and as and when the image appears on the screen the photograph of the screen to be taken.
8. If the computer is powered on the investigating officer should not power off the computer. As far as possible the investigating officer should secure the services of a computer forensic examiner to download the data available in the volatile memory i.e. RAM since the set data would be lost on the powering down of the computer or laptop.
9. If the computer is switched on and connected to a network the investigating officer to secure the services of a forensic examiner to capture the volatile network data like IP address, actual network connections, network logs etc.
10. The MAC address also to be identified and secured.
11. In the unlikely event of the forensic examiner not available then unplug the computer pack the computer and the wires in separate Faraday covers after labelling them.
12. In case of a laptop, if the removal of the power cord does not shut down the laptop, to locate and remove the battery.
13. If the laptop battery cannot be removed, then shut down the laptop and pack it in a Faraday bag so as to block any communication to the said laptop since most of the laptops nowadays have wireless communication enabled even when the laptop is in standby mode.

Seizure of networked devices

1. To ascertain as to whether the set equipment is connected to any remote storage devices or shared network devices, if so to seize the remote storage devices as also the shared network devices.
2. To seize the wireless access points, routers, modems and any equipment connected to such access points, routers, modems which may sometimes be hidden.
3. To ascertain if any unsecured wireless network can be accessed from the location. If so, identify the same and secure the unsecured wireless devices since the accused might have used the said unsecured wireless devices.
4. To ascertain who is maintaining the network and to identify who is running the network get all the details relating to the operations of the network and role of the equipment to be seized from such network manager.
5. To obtain from the network manager network logs of the machine to be searched and/or seized so as to a certain the access made by the said machine of the network.

Mobile devices (smart phone, tablets)

1. Prevent the device from communicating to network and or receiving any wireless communication either through Wi-Fi or mobile data by packing the same in a Faraday bag.
2. Keep the device charged throughout since if the battery drains out the data available in the volatile memory could be lost.
3. Look for slim slots; remove the SIM card so as to prevent any access to the mobile network back the SIM card separately in a Faraday bag. If the device is in power off mode, the battery could also be removed and kept separately.
4. If the device is powered on, then put it in an airplane mode.

General guidelines

1. In all the cases above the seized equipment should be kept as far as possible in a dust free environment and temperature controlled.
2. While conducting the search the investigating officer to seize any electronic storage devices like CD DVD pen drive hard drive USB etcetera located on the premises label and packed them separately in a Faraday bag.
3. The computer storage media laptop etcetera to be kept away from magnets radio transmitters police radios since they could have an adverse impact on the data and the set devices.
4. To carry out a search of the premises to obtain instruction manuals documentation as also to ascertain if a password is written down somewhere since many a time a person owning equipment would have written the password in a book writing pad or the like at the set location.
5. The entire process and procedure followed to be documented writing from the time of entry of the investigation or search team into the premises until they exit.

The complete judgement may be read here:

Conclusion

Thus, in absence of a set legal framework, electronic devices are being handled and seized haphazardly by investigating agencies, infringing the fundamental rights of an accused person. Further, the Centre’s lackadaisical approach towards the petition that seeks such legal framework show lack of political will and intent to safeguard such rights. The Supreme Court, in imposing a cost, has demonstrated how pertinent it has become for the Centre to file a proper response to the petition; a response that has been pending for over a year.

Related:

Revealing the password of your device to the police amounts to self-incrimination?

Varying Shades of Media Comment: Raids on Wire

Gautam Navlakha’s house arrest: Stringent Conditions Apply

The post Rules for seizure of electronic devices by Police: A Need of the hour appeared first on SabrangIndia.

On October 29, a Delhi CBI Court held that the CBI cannot force the accused to reveal the password of his computer as it would amount to self-incrimination. Since there is always an apprehension that the data accessed could be evidence that could eventually be used to prove the accused guilty in court. The court also considered a 2021 Karnataka High Court’s judgement which had held to the contrary, allowing the investigating agency to seek the password from the accused while stating that the High Court had not considered an important Supreme Court precedent.

Background

In this case, the CBI sought the password of the computer as well as some software used by the accused, which he opposed. Hence the CBI filed an application before the District Court. The investigating agency relied upon Karnataka High Court judgment in Virendra Khanna vs. State of Karnataka, (decided on 12.03.2021 in W.P. No. 11759 of 2020) where the court had held that investigating agency has a right to seek password and biometrics from an accused for accessing/opening his computer system and mobile phone which was/were seized during investigation and no constitutional right of the accused is violated.

The accused opposed the CBI’s application stating that he has the right to remain silent under Article 20(3) [No person accused of any offence shall be compelled to be a witness against himself] of the Constitution of India as well as Section 161 (2) Cr.P.C [Such person shall be bound to answer truly all questions, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture], also adding that the CBI demand interferes with his right to privacy. He also refuted the application of the Virendra Khanna judgement due to territorial limitation and also on grounds that it was a judgment per incuriam i.e. a judgement applied without due application; wherein a judgement of a court has been decided without reference to a statutory provision or an earlier judgement which may or would have been relevant.

Right against self-incrimination

The right against self-incrimination finds its origins in Latin maxim nemo tenetur seipsum prodere (i.e. no one is bound to accuse himself) and the evolution of the concept of “due process of law” enumerated in the Magna Carta.

In Selvi v. State of Karnataka, (2010) 7 SCC 263, the Supreme Court held thus, “the right against self-incrimination” is a vital safeguard against torture and other “third-degree methods” that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course.

The major crux of this right lies in the principle that during the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and hence, this right is a vital protection to ensure that the prosecution discharges the said onus.

The US Constitution incorporates the “privilege against self-incrimination” in the text of its Fifth Amendment.

Article 14(3) (g) of the International Covenant on Civil and Political Rights (ICCPR) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that “everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

With the right against self-incrimination also comes the provision that a person’s right to remain silent cannot be adversely used against him to prove his guilt. Section 161(2) CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and proviso (b) to Section 315(1) of the Code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.

Jurisprudence

In Selvi, the Supreme Court held that although certain provisions of CrPC such as section 39 (places a duty on citizens to inform the nearest Magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes) are intended to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to the accused persons.

The person being interrogated can resort to Section 161(2) CrPC which prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.

In Nandini Satpathy case [(1978) 2 SCC 424 : 1978 SCC (Cri) 236], Justice VR Krishna Iyer held, “Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station.”

 What does not count as self-incrimination?

There are other instances where issue of self-incrimination has been argued before courts and the courts have liberally allowed investigations holding certain investigations to be compatible with Article 20(3) which means that not all investigations or seeking of evidence from an accused can amount to self-incrimination. While interpreting Article 20(3), the Supreme Court in Selvi held that Constitution-makers could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice.  The giving of finger impression or of specimen signature or of handwriting, does not amount to self-incriminating evidence.

“Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge,” the court held.

in Jamshed v. State of U.P. [1976 Cri LJ 1680 (All)], the Allahabad High Court held that the phrase “examination of a person” under Section 53 CrPC should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body and thus held that a blood sample can be compulsorily extracted during a “medical examination”.

In Mahipal Maderna v. State of Rajasthan [1971 Cri LJ 1405 (Raj)], the Rajasthan High Court held that an order requiring the production of a hair sample comes within the ordinary understanding of “investigation”

Revealing password is self-incriminating?

The court, relied upon the Selvi judgment where the apex court laid out a test to identify whether a particular fact/information/testimony/evidence comes within the category of “testimonial fact” as protected by Article 20(3) of the Constitution of India which an accused is not bound to give. The oral or written statement which convey the personal knowledge of a person in respect of relevant facts amount to “personal testimony” and may be based on oral or written statement of an accused but they can still be compelled for the purpose of identification or comparison with facts and materials which are already in the possession of the investigating agency.

The court held that Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence” needed to do so but not for comparison/identification with other evidence.

“…a testimony in oral (like voice sample) or written form (like specimen hand writing or signature) though may be personal yet they can be taken under compulsion from an accused if it is to be used for the purpose of identification or comparison with already available voice recording or signature/handwriting which is/are obtained from other sources like seizure of document or chance print, finger prints of the scene of crime, etc,” the court said.

Since the CBI was seeking password of the computer from the accused for accessing his data and not for comparison or identification, the court held that narco-analysis of an accused cannot be done without his consent since such procedure involves personal knowledge of the accused. On the same principle, the court held that similar logic applies to a password as it involves the import of personal knowledge.

When statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence”, then bar of Article 20(3) of the Constitution would apply.

Password vs Biometrics

Computer sources or mobile phones these days can also be unlocked by use of biometrics such as thumb print or face scan. In the Virender Khanna judgment, password and biometrics have been treated as one and the same thing. However, the district court in this order observed that as per the Criminal Procedure (Identification) Act, 2022 (w.e.f. 18.04.2022) a different approach is required to be taken.

The court observed that biometrics such as finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan are included in the definition of “measurements” as are physical, biological samples and their analysis, behavioural attributes including signatures, handwriting. Thus, during investigation such “measurements” can be taken by the police and the Magistrate can also given directions to the accused to provide such measurements. However, the Act does not mention words like password or user id in the definition of “measurements”. “Therefore, it is clear that the aforesaid Act does not apply to the password/User ID of an electronic record (which may be contained in a computer system, mobile phone, hard-disk, memory card, email etc.) or any other documentary evidence (like a suit-case locked with some number code),” the court held.

The court has thus inferred that an accused can be asked or directed to give his biometrics (in the form of his finger impressions, face or iris recognition) for the purpose of opening of his electronic device.

At the same time, the Criminal Procedure (Identification) Act, 2022 under section 3 has an exception that “any person arrested for an offence committed under any law for the time being in force may not be obliged to allow taking of his biological samples under the provisions of this Section” unless the offence is against a woman or a child or when the offence is punishable for more than 7 years. Which means if a person is charged with minor offences he/she can refuse to provide such “measurements”.

“…said biometrics can be taken from an accused and used for opening of mobile phone/computer system/email/software applications, etc. by the police agency, wherever such need arises for a fair investigation,” the court opined.

Further, if password is required by police not for accessing data but for comparison of the said password (as a physical evidence) with the other available evidence, then the same is permissible.

Password is a testimonial fact

The court was of the opinion that when an accused is asked to disclose his password to the investigating agency, he is required to apply his mental faculty and/or memory to recall said password and it is purely based on his personal mental effort or knowledge, therefore, said information comes within the category of “testimonial fact” which the accused cannot be forced to give.

“…a password does not itself constitute a ‘self-incriminating testimony’ against an accused who gives such password, but from practical point of view, the said password alone is not the sole objective of the IO and in fact he wants to use it for the purpose of accessing the data which is contained in a computer system or a mobile phone which is/are seized from the accused and, therefore, the said password is to be taken as integral part of the said computer system/mobile phone which is/are not severable from it. While considering the status of such information being incriminating or not, this Court cannot consider password alone in isolation.”

Even if there is apprehension that the data revealed after entering the password may be incriminating, the accused has the right to not give such password to the investigating agency as per section 161(2) of CrPC which uses the words “tendency to expose him to a criminal charge or to a penalty or forfeiture.”

Evidence obtained by illegal means can still be used in the court in certain circumstances, hence if after being forced to reveal password, incriminating data is revealed, it will amount to self-incrimination by the accused.

Conclusion

The court thus held that the accused cannot be compelled to provide any password to his computer as he is protected by Article 20(3) of the Constitution of India as well as Section 161(2) of Cr.P.C. However, at the same time the Investigating agency is at liberty to access the data in the computer with the help of specialised agency or person at the risk of accused for loss of data, if any.

This being an order of a district court, it will not have an impact on jurisprudence, unless affirmed or upheld by at least, a High Court. However, the order has decided upon an important aspect of investigation since electronic devices are often seized by investigating agencies in the course of investigation when those accused are not aware of their right against self-incrimination. Even if this order cannot have the force of law to be applicable in all cases, it can become matter of contention to be decided by higher courts eventually to protect an accused person’s right against self-incrimination.

Relevance to The Wire raids

This order also came at a time when multi-city raids were conducted by Delhi Police at the homes of editors of The Wire, an independent online news portal based on a criminal defamation complaint filed by BJP’s IT cell chief, Amit  Malviya. The FIR was lodged on charges of cheating, forgery defamation and criminal conspiracy; none of which are serious offences where the accused can be forced to give any biometric information. Now as per the CBI court’s order, none cannot be forced to even reveal passwords to their devices.

The Delhi  Police Crime Branch, however, arbitrarily conducted search and seizure operations at the homes of The Wire’s founding editors, Siddharth Varadarajan, M K Venu and Sidharth Bhatia as well as the deputy editor, Jahnavi Sen and product-cum-business head, Mithun Kidambi, relying on notice under Section 91 of the Criminal Procedure Code, 1973.

According to media reports, a total of 16 devices were seized from the office of The Wire. Two phones, a tablet and a laptop from Varadarajan, a phone and a laptop each from Venu, Bhatia, Sen and Kidambi, and two hard disks from the accounts department’s computers were among the devices seized. A reporter’s phone and the computer he worked on at the Wire’s office were also taken away in Delhi. In addition to these devices, the Delhi police also asked the four editors and Kidambi to remove passcodes from their phones and laptops, and to provide passwords to their official and personal email accounts. Three staffers were asked for passwords to their official email accounts while another staff member was told to give passwords to both official and personal email accounts.

Siddharth Vardarajan told Sabrangindia that they had opposed the seizure of these devices without providing (the safeguard of) any hash value (ie numeric value that uniquely identifies data lodged in any device at a particular point of time. The Wire has given objections of this violation of procedure in writing to the Delhi Police contingent and Investigating Officer (IO). They were all however compelled to surrender all devices and divulge the passwords without the requisite safeguards of protecting the integrity of the data seized.

Independent analysis and investigation of a cloned hard disc of one of the accused in the famed Bhima Koregaon case has revealed how data implants on computers are indeed a possibility. Arsenal Consulting, a Massachusetts-based digital forensics firm has analysed an electronic copy of activist Rona Wilson’s laptop and arrived at the conclusion that an attacker used malware to infiltrate the laptop and place incriminating evidence on it, reported The Washington Post. To date this has not been examined by the courts in this case.

Meanwhile the PUCL statement condemning the raids in The Wire noted that the Crime Branch did not follow the requisite procedure as it took away devices from the news portal’s New Delhi office and from the homes of those raided without providing any hash value, i.e., the numeric value that uniquely identifies data lodged in an electronic device at any given point in time.  There are legitimate concerns that absence of a hash value leaves the door open to planting material on the digital devices.

The order may be read here.

Related:

Raids on Wire editors & seizure of electronic devices did not follow law & procedure: PUCL

Raids on The Wire criminalising journalism: DIGIPUB India condemns Delhi police action

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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:

The post Handling of electronic evidence by agencies a perversion of criminal justice: CCG appeared first on SabrangIndia.

The “Letter” or Letters that speak of the plot to assassinate Indian PM Modi deserve careful de-construction

In order to make more complete sense of the issue before us, let us first try to arrange the events in (a rough) chronological order.
 
 I. Here’s a news report carried by the Times of India (TOI), June 6 web edition, which informs us:
“Human rights activist Rona Jacob Wilson was arrested from South Delhi early on Wednesday [i.e. June 6 2018] in connection with the Koregaon violence in Maharashtra.”
(https://timesofindia.indiatimes.com/city/delhi/koregaon-violence-activist-rona-jacob-wilson-arrested-in-delhi/articleshow/64474008.cms)
It further adds:
“..Pune police had located Wilson to a flat in Munirka area of south Delhi and sought Delhi Police’s assistance in nabbing him.
A raid was conducted in the early hours of Wednesday and the suspect was taken into custody.
Earlier, the police had conducted a search at Wilson’s house and seized documents and his laptop.”
 
So, question one, was it the Pune police which actually carried out the arrest (with the assistance of the Delhi police?).
Two, had one such a raid been carried out, earlier? (When?) and also that morning?
In the earlier search, “documents and his laptop” were seized.
There’s no report of any seizure during the search on June 6, in the early hours.
In fact, some “documents and his laptop” had already been seized.
 
Now, let’s refer to a report carried by the Indian Express web edition dtd. June 7 (before the break of dawn).
It informs us:
“Earlier, the Pune city police had on April 17 conducted searches at the residence of Dhawale, Wilson, Gadling, Elgaar Parishad organizer Harshali Potdar, and also Pune-based Sagar Gorkhe, Deepak Dhengle, Ramesh Gaichor and his wife Jyoti Jagtap, all artists of “cultural group” Kabir Kala Manch (KKM).”
(http://indianexpress.com/article/india/koregaon-bhima-violence-case-pune-police-arrest-top-urban-maoist-operatives-from-delhi-mumbai-nagpur-5206033/)
The report adds:
“Police sources said that following the forensic analysis of electronic and other evidence obtained during the search operations, four teams of Pune city police were dispatched to Mumbai, Delhi and Nagpur on Tuesday.”
 
So, it was on April 17 that the laptop had been seized.
(There’s no report that any second/third laptop was seized from Rona Wilson’s place subsequently.)
The police, obviously, needs some time to examine the laptop, go through its contents and make sense of what has been found.
 
Bhima Koregaon Violence
Violence at Bhima Koregaon violence had been first  sparked off on January 1 last and further spread statewide on the next day: “Violent protests erupted in Mumbai, Pune, and other cities across Maharashtra on Tuesday (January 2), with protesters damaging buses, blocking roads and railway lines and forcing shops to shut, a day after unrest in Pune district during celebrations (on Jan. 1) to mark the bicentenary of a British-Peshwa war.”
(https://www.hindustantimes.com/india-news/violence-in-maharashtra-as-dalits-protest-death-of-28-year-old-in-bhima-koregaon-clashes/story-zerVWqrSjLjF2x53oHMVXL.html>.)
So, the first raid and seizure itself was carried out after the lapse of about three and a half months.
And, Rona Wilson would be arrested on June 6, about a month and twenty days after the (first) search and seizure.
 
II. India Today, on its website, on June 8 (early evening?), had reported:
“India Today has accessed a letter describing a plan to assassinate Prime Minister Narendra Modi in a “Rajiv Gandhi type” incident, which a leading daily said was “gathered from material seized” from five people arrested for alleged Maoist links.”
It does not, repeat not, talk of any police complaint.
(https://groups.google.com/forum/#!searchin/greenyouth/A$20$27Dreyfus$20affair$27$20in$20the$20making$3F$20$27$27Another$20Rajiv$20Gandhi-type$20incident$27$3A$20Maoist$20letter$20exposes$20plan$20to$20kill$20PM$20Modi$27%7Csort:date/greenyouth/vHG54ZnbxGA/jqTSLtM6BAAJ>)
 
The India Today website has since updated/amended the report.
It, no longer, talks of the India Today accessing the letter (on its own?)
(https://www.indiatoday.in/india/story/plan-to-assassinate-narendra-modi-in-rajiv-gandhi-type-incident-intercepted-1255087-2018-06-08>.)
The original version is, however, still available here: https://www.msn.com/en-in/news/newsindia/plan-to-assassinate-narendra-modi-in-rajiv-gandhi-type-incident-intercepted/ar-AAynvcy.
(Another useful reference: https://www.ucnews.in/news/Plan-to-assassinate-Narendra-Modi-in-Rajiv-Gandhi-type-incident-intercepted/797028166218754.html and https://m.facebook.com/story.php?story_fbid=1796151710462876&id=273506732727389)
 
Later, the same evening, the TOI website informed us:
“The Pune Police have intercepted an internal communication of the Maoists, which talks about the ultras planning to assassinate Prime Minister Narendra Modi in the manner of a ‘Rajiv Gandhi-type incident’.
The letter was allegedly found in the house of one of the five persons arrested for “links” with the banned CPI (Maoist), the Pune Police told the court on Thursday (i.e. June 7) [emphasis added]. [That implies the letter was produced before the court on June 7 itself.]
…
The letter found in Rona Wilson’s house in Delhi [emphasis added] refers to the requirement of Rs 8 crore to procure M-4 rifle and four lakh rounds, and also mentions “another Rajiv Gandhi-type incident”.
(https://timesofindia.indiatimes.com/india/another-rajiv-gandhi-type-incident-maoist-letter-exposes-plan-to-kill-pm-modi/articleshow/64505905.cms>.)
 
The Hindustan Times (HT) webiste, on the same day, presents an even clearer picture:
“Pune police have allegedly recovered a letter mentioning a plan to assassinate Prime Minister Narendra Modi from a person arrested in connection with Maoist activities recently.
The document, a copy of which is with the Hindustan Times, was submitted in court by the Pune police on Thursday. …
…
Pune joint commissioner of police Ravindra Kadam said several virtual and physical documents were recovered during anti-Maoist raids conducted on April 17. A scanned copy of this particular letter was allegedly found on the laptop of Rona Wilson Jacob [emphasis added], one of the five people arrested on Wednesday in connection with the Bhima-Koregaon violence. The others taken into custody along with him were identified as Surendra Gadling, Sudhir Dhawale, Shoma Sen and Mahesh Raut.
…
Addressing the court on Thursday, public prosecutor Ujjwala Pawar said it was evident from the letter that the Maoists were planning to kill “someone” on the lines of Rajiv Gandhi’s assassination. “The sender of the letter mentions that the plot sounds suicidal, but the party must still deliberate on the proposal,” she added.
(https://www.hindustantimes.com/india-news/maoists-letter-shows-conspiracy-to-carry-out-rajiv-gandhi-like-assassination-of-pm-modi/story-f8vdgxC5MvORvipwtRMwXM.html)
 
So, as per the official version, the letter was found in Rona Wilson’s laptop seized from his Delhi residence on April 17.
It’s a scanned copy (not a mail in the mailbox).
 
The said HT report further informs us:
“Home minister Rajnath Singh on Friday said that the government is serious about the security of the Prime Minister. “We are always serious about the prime minister’s security. The Maoists are fighting a losing battle. [Emphasis added.] They are now active only in 10 districts in the country,” Singh told a press conference in Jammu after a two-day tour of Jammu and Kashmir.”
That was, on June 8 – one day after producing the letter, in the court, which had been seized around seven weeks back. No talk of any enhanced security for the Prime Minister in view of “discovery” of the threat letter. On the contrary it was asserted that the government was always serious, implying that no additional seriousness/measure was called for. Not only that, the “Maoists are fighting a losing battle.” So, no need to worry.
(A facsimile of the “letter” is available on both the HT and TOI reports cited above. Also at https://twitter.com/ANI/status/1004982450563440640/photo/1.
An even better copy, including the bottom edge, is available at<https://thewire.in/politics/modi-assassination-plot-letter-danger-democracy)
 
 III. On June 10th, Sharad Pawar, the NCP supremo, while addressing a rally, in Pune, trashed the “letter” alleging “that the threat letter was being used to win people’s sympathy.”
The media picked this up.
( https://www.ndtv.com/india-news/amid-row-over-pm-assassination-plot-sharad-pawar-says-its-for-sympathy-1865366)
 
The NDTV report further added:
“Speaking at the NCP function in Pune, Mr Pawar raised doubts on the veracity of the threat letter. “I have spoken to a senior retired police officer who told me that when such letters come they do not go to the media but to security agencies which make sure that adequate security measures are taken [emphasis added],” he said.
 
IV. In the first instance, on June 8, days before Pawar’s public trashing of the letter, the Union Home Minister, Rajnath Singh had (first) implicitly denied the need for any enhanced security for the Prime Minister, in the wake of the alleged unearthing of the threat “letter”. However, the day after Pawar made key observations on the expected response from a government responding to a genuine “threat letter”, Singh then held a well publicised “review meeting”, (as if in response to Pawar’s argument) on June 11!!
 
The TOI had reported:
“Union home minister Rajnath Singh reviewed the PM’s security on Monday in the backdrop of a communication between individuals linked to Maoist outfits revealing a plot to assassinate him. Sources told TOI the threat was being taken “very seriously” and the deliberations at the meeting focused on further strengthening the PM’s security apparatus to effectively neutralise all possible threats [emphasis added].”
(https://timesofindia.indiatimes.com/india/rajnath-singh-reviews-pm-security-in-wake-of-assassination-plot/articleshow/64549157.cms)
 
It further added:
 “While the PM’s security is of the highest level, today’s meeting discussed if the standard operating procedures can be further tightened. An overview will be taken by the expert committee in this regard,” an MHA official said.
The meeting on Monday was attended by national security adviser Ajit Doval, home secretary Rajiv Gauba and Intelligence Bureau director Rajiv Jain. “The home minister directed that all necessary measures be taken in consultation with other agencies to suitably strengthen the PM’s security arrangements,” said an MHA release.”
 
Just three days before, the Home Minister had virtually pooh-poohed any need for any enhanced security.
 
V. The HT report cited above further informs:
“In another development, sources in the state home department on Friday said Maharashtra chief minister Devendra Fadnavis received two threat letters allegedly from Maoist groups over the last ten days.
The letters, which reached the chief minister’s office a week ago, have been handed over to the police. “They came after the recent anti-Naxal operations in Gadchiroli, in which 39 Maoists were killed. The letters have been handed over to the police for further investigation,” an official said, adding that both the documents mentioned the Gadchiroli encounters.”
 
The comment on the claim by the BJP’s most major alliance partner in the state is quite interesting:
“The Shiv Sena on Monday called the assassination plot against Prime Minister Narendra Modi and Maharashtra Chief Minister Devendra Fadnavis “a thrilling horror story” and said such threats have the tendency to surface ahead of elections.”
(https://www.hindustantimes.com/mumbai-news/shiv-sena-ridicules-maoist-plot-against-pm-modi-cm-fadnavis-calls-it-a-thrilling-horror-story/story-EsOi5vfiC0O5R444nBseXI.html)
 
VI. What is of real salience here is the fact that an alleged threat to the life of the Prime Minister of India is, even after public disclosure of the threat (contrary to usual practice?), is still being handled by the Pune police.
 
It remains to be handed over to the National Investigation Agency (NIA), which was brought into being, in the wake of the Mumbai terror attack in November 2008, specifically “to deal with terror related crimes across states without special permission from the states” (https://en.wikipedia.org/wiki/National_Investigation_Agency).
There’s, as yet, not even any suggestion to that effect.
 
Coming on top of the flip-flop of the Union Home Minister on the need for enhanced security for the Prime Minister in the wake Sharad Pawar’s well-publicised comment, cited above, it raises serious doubts as regards the genuineness of the “letter”.
 
It raises the very relevant question whether the “letter” is just a dirty trick, only a “plant”, by the concerned police department, aiming to strike at too many birds with a single stone.
 
Of relevance in this context is the following:
“All this stirs up suspicions about the authenticity of the letter. According to me, the letter is nothing but a publicity stunt by the Police Department,” he (Prakash Ambedkar) said [on June 13?].
He said a threat letter to a prime minister has never been publicised this way in independent India. “If there is a threat to PM, then increase his security from seven to 14 layers,” he said.
(http://www.thehindu.com/news/cities/mumbai/threat-to-pm-just-a-stunt-ambedkar/article24157266.ece)
 
 
VI. It is in this context, it’s necessary to take a careful look into the alleged “letter”.
 
1. The “letter” is addressed to one “Comrade Prakash”.
One doesn’t know who this “Comrade Prakash” is.
But that’s quite unexceptional.
One, not too many leaders/activists of the CPI (Maoist), being a banned and underground organisation, are in the public gaze.
Two, more importantly, even a lay person would assume that such letters, communicating a high conspiracy, would refer to only code names, and not the real ones.
That must be the very basic ground rule.
 
Even then, Prakash Ambedkar was obliged to deny, in response to a specific query, that he’s not the “Prakash” mentioned therein (ref: the Hindu report, op. cit.).
No, Prakash Karat, has not issued any such denial, yet!
 
2. Surprise of surprise!
The very opening sentence mentions two names: “Arun, Vernon”.
Incidentally, Arun Fereira and Vernon Gonsalves, both from Mumbai, had been arrested, roughly around the same time (may ref. a comment jointly penned by them at (https://www.dailyo.in/politics/bhima-koregaon-probe-death-threats-to-pm-fake-political-narrative-sinister-plots-by-maoists/story/1/24769.html), and jailed in the past, being kept in the Nagpur jail, for being activists of the CPI (Maoist).
The former was, eventually acquitted.
The latter served jail term and got released thereafter.
Both are known and exposed, must be under the police scanner.
 
Arun is, of course, a common name.
But, Vernon is, definitely, not.
And, when these two names are put together, it becomes highly improbable that “Arun” stands for “Arun Sanyal”, or whatever, and “Vernon” for “Vernon D’Mello”.
 
So, the use of real names, that too of two already exposed and pretty well known to the police, and public, is definitely a strong clue (as regards the genuineness of the “letter).
 
Then, the letter talks of one “Bijoy Da”.
Apparently, it’s a code name.
In fact, it is.
But, the code is very well broken. And, it’s pretty much in the public domain.
It refers to one Narayan Sanyal, an ideologue and top rung leader, belonging to the first generation, who had been arrested back in 2005 and would be later released in 2014, because of failing health
(https://www.hindustantimes.com/kolkata/top-maoist-ideologue-narayan-sanyal-passes-away-in-kolkata/story-WDxSG8Ed3hgC6JQl0iUdwJ.html) “(P)assed away in a south Kolkata hospital on April 17, 2017. He was in his early 80s and was suffering from cancer.” (http://www.satp.org/satporgtp/countries/india/maoist/data_sheets/Central_level_leaders_CPI-Maoist.htm)
There’s a litany of praise about the leader who had deceased just the previous day (as per the day of writing that the “letter” indicated at the bottom: (https://thewire.in/politics/modi-assassination-plot-letter-danger-democracy)
 
Then it refers to “Com. Saibaba”.
Again, a very well-known name. In jail. Suffering from severe health problems and 90% disabilites.
Then it refers to one “Prashant”. It tells us that the “Gadchirili court” has helped contain his rebellion against Saibaba. That raises the possibility that this “Prashant” is one Prashant Rahi. (Ref:  “A district court in Gadchiroli Tuesday sentenced wheelchair-bound Delhi University professor G N Saibaba and four others to life imprisonment … The others who were handed life terms are Hem Mishra, Prashant Rahi, Mahesh Tirki and Pandu Narote.” at https://indianexpress.com/article/india/gadchiroli-court-says-du-professor-g-saibaba-guilty-of-having-links-with-maoists-4558336/). But there’s also another Prashant (Bose), again a real name, who’s, reportedly, the no. 2 in the organisation. (https://en.wikipedia.org/wiki/Prashant_Bose)
 
Now, a code name is used: “HB”.
It is laid out therein that this “HB” is entrusted with the responsibility to mobilise public opinion and take other necessary measures to facilitate release of the CPI (Maoist) prisoners, including Saibaba.
So, it could very well be just an additional attempt to tarnish those speaking in defence of the due legal rights of these prisoners, labelled as Maoists, rightly or wrongly.
No point, at this time, trying to hazard a guess who this “HB” is.
Maybe it’s just to make the point that the “letter” has (also) used code names, as it is very much expected to.
 
The letter goes on to cite more names – Com. Ashok B, Amit B, Seema and Sudhir, who were obviously at large, at its real or pretended time of writing. And, then, Com. Siraj, Vishnu and Com. Basanta, Com. Kisan.
 
3. Then the letter, at the fag end of this same first paragraph brings up, rather abruptly, a very crucial issue: “[our] requirement of [Rs.?] 8Cr for annual supply of M4’s [rifles?] with 400000 rounds [of ammunitions?]”.
Com. Prakash is asked, at the very end of the same para: “Please convey your decision.”
So, Com. Prakash is, apparently, to take a decision on providing Rs. 8 crore and act accordingly.
Quite a big guy!
 
4. Then follows the next, and last, para.
The crux is: “(A few senior) comrades [one named as Com. Kisan] have proposed concrete steps to end Modi-raj. We are thinking along the lines of another Rajiv Gandhi type incident [emphasis added]. … Targeting his road-shows could be an effective strategy.”
(Incidentally, “Kisan” is one of the aliases used by Prashanta Bose, as per the wiki site cited above, who’s alleged to be following an egoistic agenda and have had revolted against Saibaba.)
 
5. The letter ends with the writer signing off as: “R”.
And, the date indicated as: “18/04/17”.
(The Wire comment by Prem Shankar Jha, op. cit.)
 
6. That’s the “letter” what had been tweeted by the ANI, on the intervening night between June 7 and 8 – 12:04 AM, 8 Jun 2018.
This would be picked up by the MSM outlets later in the late evening.
 
VII. Fools rush in where angels fear to tread.
 
What the MSM print outlets dared not to do was picked up by a news portal, known for disseminating fake news on behalf and at the behest of the Sangh Brigade.
( https://www.altnews.in/postcard-news-mass-producing-fake-news/ and https://scroll.in/article/873872/arrest-of-postcard-news-co-founder-shines-a-light-on-indias-fake-news-problem)
 
It presents, on June 7 2018 itself, an entirely different 2-page letter, addressed to “Dear Comrade Rona”, no mistake.
It names names, and lots of them. (And also provides some phone numbers.)
No abbreviations or the likes, except for the one signing the letter, Com. M, on Jan. 2 2018.
Way more direct, explosive and incriminating.
( https://pbs.twimg.com/media/DfFJdUqUEAA0kLj.jpg> and https://pbs.twimg.com/media/DfFJdQAVMAENqih.jpg>.)
 
What this “letter” lays out is rather succinctly summarised by the news portal as under:
 
Excerpt 1: Whatever legal and financial aide (sic) that is required for the violence, the Congress is ready to provide through Jignesh Mevani.
 
Excerpt 2: Dalit sentiments are against Brahmin centred agenda of BJP/RSS, This should be converted into large scale mobilization and CHAOS.
 
Excerpt 3: Comrade Jignesh and Comrade Umar are young fighters of our revolution and with strong support from Comrade Prakash Ambedkar, we can foresee the outcome of their efforts in consolidating Dalit agitation across India in few years.
 
Excerpt 4: Last year in July August, higher committee provide two rounds of funds to Comrade Sudhir to consolidate Dalit struggle and agitation. Comrade Shoma and Surendra have authority to provide more funds for future programs.
 
Excerpt 5: The Bhima Koregaon violence has been very effective. The death of the youth must be exploited to prepare future agitation and propaganda material
 
Excerpt 6: We must keep up the pressure through simultaneous protest programs across many states, it will undoubtedly help take down Modi government in 2019.
 
So, the focus here, to a very large extent, now shifts to the main opposition party, the Congress.
(The interpretations/comments, that immediately follow, bring that out with knife-edge sharpness.
The very opening sentence posits: “This shocking evidence shows how Congress used Dalits for their dirty anti National (sic) game to divide India and incite violence every where (sic).”
It alleges: “Terrorists/Maoists hold guns and kill people, where as (sic) Congress is sponsoring and helping the same people buy guns.”
It claims: “Sonia Gandhi and Rahul Gandhi … are obligated to come and answer the people of the country as to what was their connection with Maoist and terrorists in Bhima Koregaon violence.”
And, the rant goes on and on.)
 
Two, the Congress, Jignesh Mevani, Umar Khalid, Prakash Ambedkar, Sudhir Dhawale, Surendra Gadling, Shoma Sen and many more are named as actors in the nefarious conspiracy.
As regards the Congress, no individual is named – it’s the organisation as a whole.
 
One striking discrepancy is that the “letter” dtd. Jan. 2,2018, at the very beginning, talks of an “upcoming fact finding of 6th december (sic).”
But, what is way more striking is that this version doesn’t talk of the alleged plot to kill the Prime Minister!
 
As it appears, this is the “letter” which had been used, earlier that day, by the Times Now TV channel, reportedly, the most popular of its kind.
And, with the very same thrust.
( https://twitter.com/hashtag/MaoistLetterNamesCong?src=hash)
 
Just one stone, in this case the purported “letter”, is aimed at killing, or at least seriously maiming, too many birds.
 
That’s truly remarkable.
 
VIII. As usual, the media trial is conducted, based on selective “leaks” while the accused are, reportedly, denied access to the documents based on which the complaints have been filed.
“These so-called letters, which have been refused to the defence lawyers of those arrested, are being freely “leaked” and being read out on live television. The sole purpose seems to be to whip up a false narrative, favourable to the current regime. Sidetracking the demands of the Dalit movements to punish the Hindutva leaders and the organisations responsible for the attacks of January 1, 2018 on the congregation at Bhima Koregaon can be another probable purpose.”
(Ref.: The ‘daily O’ comment, op. cit.)
 
By the time the court trial is over and the court delivers its verdict, it’d be politically rendered rather pointless, because of the raucous media trials already carried out.
 
IX. In this context, one has also to keep in mind the established track record of the current regime.
Two instances are very instructive.
 
AA. On Dec. 10 2017, at the very closing phase of the last Gujarat assembly poll campaign, in a public rally, the Indian Prime Minister himself made the sensational charge of a Pak conspiracy to install Ahmed Patel, a Congress leader from South Gujarat, as the Chief Minister of Gujarat in collaboration with his predecessor, Manmohan Singh, the previous Vice President of the country, Hamid Ansari and a few others. (https://economictimes.indiatimes.com/news/politics-and-nation/why-does-pakistan-army-ex-dg-want-ahmed-patel-as-gujarat-cm-narendra-modi/articleshow/62008106.cms)
 
Just two days back, the media had gone agog with a report that a mystery poster “has emerged in Surat just couple of days before the first phase of Gujarat elections in support of Congress. It urges Muslims to unite and give vote to the Congress party, so that senior leader Ahmed Patel can become the ‘Wazir-e-Alam’ of Gujarat. So essentially, the poster claims that Ahmed Patel can be the Chief Minister of the state.” (http://www.dnaindia.com/india/report-poster-in-surat-claims-ahmed-patel-to-be-made-wazir-e-alam-of-gujarat-cong-leader-calls-it-fake-2565762)
The report further added:
As soon as the news broke, Ahmed Patel issued a clarification on Twitter. He said that it’s a fake poster and he doesn’t have any aspiration of becoming the Chief Minister of Gujarat. He also blamed BJP for trying to mislead people. He tweeted, “Putting up fake posters and orchestrating a rumour campaign shows the utter desperation of the BJP. Fearing defeat, do they have to rely on such dirty tricks? I have never ever been a candidate for CM and will never, ever be.”
 
This, evidently, lent a ring of credibility to the charge that would be hurled by the Prime Minister, whose credibility level is otherwise not too high, two days thereafter.
 
The charge would be strongly refuted by those adversely affected.
The government could come up with no proof to substantiate the charge.
Faced with the determined Congress opposition, the Finance Minister and the leader of the Rajya Sabha, Arun Jaitley, on behalf of the government, retracted the charge on the floor of the parliament: “PM in his speeches didn’t question, nor meant to question the commitment to this nation of either former PM Manmohan Singh or Former VP Hamid Ansari, any such perception is erroneous, we hold these leaders in high esteem, as well as their commitment to India,” said senior BJP leader and Union minister Arun Jaitley today in the Rajya Sabha.
(https://timesofindia.indiatimes.com/india/pm-modi-didnt-mean-to-question-manmohan-singhs-commitment-to-india-says-njps-arun-jaitley-in-rs/articleshow/62266068.cms. Also, for two juxtaposed short video clips of the PM’s speech and the FM’s retraction: https://twitter.com/officeofrg/status/946038581306441728?lang=en)
But that had come only on December 27.
By that time the Gujarat poll had already been well over, voters voting with the conspiracy charge on their mind, results declared.
So, the purpose very well served.
 
BB. The other (older) incident relates to India’s claim of “surgical strikes” inside Pakistan held territory across the Line-of-Control (LoC)
 
On September 29, 2016, Lt. General Ranbir Singh, Director General Military Operations (DGMO), Indian Army, made an announcement on behalf of the Indian Army (and the Union Government) claiming “surgical strikes” across the LoC, hitting the “launchpads” of the “terrorists”.
(https://www.hindustantimes.com/india-news/india-carried-out-surgical-strike-across-loc-inflicted-damage-on-terrorists-army/story-s0mbwkNxTGpfowxMK9lxLI.html and https://www.nytimes.com/2016/09/30/world/asia/kashmir-india-pakistan.html)
This claim of “surgical strikes” came following a devastating attack by “fidayeen militants” from across the border on an Indian Army base in Uri on the previous Septmber 18, killing 18 Army jawans ( http://www.thehindu.com/news/national/18-jawans-killed-in-pre-dawn-strike-at-Uri/article14988716.ece). “It is the deadliest attack on security forces in Kashmir in two decades.”
(https://www.bbc.com/news/world-asia-india-37399969.)
 
So, the preceding Uri suicide attack, which seriously threatened to make a very big dent in the carefully constructed 56″ image of Modi, the Prime Minister, was the driver for the claimed “surgical strikes”.
 
Quite surprisingly, Pakistan instead of responding in a belligerent manner, as it routinely does in case of alleged ceasefire violations by India, causing grievous harm to lives and properties on this side of the LoC, just dismissed the claim offhand, albeit with a stern warning, from an anonymous “senior Pakistani security official”, “that Pakistan could use tactical nuclear weapons in self-defense if India initiates a war” and a “surgical strike” would be considered just that. (Ref: The NYT report, op. cit.)
An official spokesperson from Pakistan claimed:
“There had been cross border fire initiated and conducted by India which is [an] existential phenomenon,” said an Inter-Services Public Relations statement released shortly after the Indian director-general of military operations held a press conference making claims about surgical strikes.
“The notion of surgical strike linked to alleged terrorists’ bases is an illusion being deliberately generated by India to create false effects,” the Pakistani military said in a statement.
“This quest by Indian establishment to create media hype by rebranding cross border fire as surgical strike is fabrication of truth.”
(https://www.aljazeera.com/news/2016/09/pakistan-denies-india-carried-surgical-strikes-160929165646369.html)
 
Soon thereafter, “Pakistani military took local and foreign journalists on a rare visit to forward locations along the Line of Control to debunk the myth of Indian surgical strikes.”
(https://tribune.com.pk/story/1192133/surgical-strikes-journalists-flown-loc-debunk-indian-myth/)
The report, dtd. October 2, further claimed:
“While India is reluctant to share details or evidence of its trumpeted strikes, Pakistan Army took the journalists to some of the sectors where the Indian military claimed special forces had decimated perceived ‘launch pads of terrorists’. “No such incident took place nor will we allow any such incident to happen in future,” Lt Gen Asim Saleem Bajwa, the director general of the Inter-Services Public Relations (ISPR), told the visiting journalists. “If the adversary attempted so, it will be responded with an ever stronger force,” he added.
The journalists were taken to mainly two spots of Boxor Formation and Hotspring Formation out of the 190-kilometre stretch of the LoC, where India claimed it[s] forces had carried out the so-called surgical strikes. At both locations, which are about 50 kilometres apart, no signs of destruction or casualties were found except the two soldiers, who had been killed – one each at the two formations – due to unprovoked firing by Indian forces. Besides, nine soldiers who have since recovered from injuries and returned to their respective duties.
…
… The journalists represented international media outlets, including CNN, BBC, VOA, Reuters, AP, AFP, News Week and BBC Urdu Service [emphasis added].
The NYT, apparently, in the immediate wake of this above-referred conducted trip, reported:
“Schools have remained open. Grocery stores were serving customers, and buses moved slowly on patchy, winding roads along the hilly terrain. As the afternoon sun sank behind the hills, several women could be seen working in the fields, cutting grass and herding cattle.
( https://www.nytimes.com/2016/10/02/world/asia/kashmir-pakistan-india.html)
 
And, that was not the only snag.
 
During the question-answer session at the end of the ‘Daily Press Briefing by the Office of the Spokesperson for the Secretary-General’, on Sept. 30 2016, the Spokesman, in response to questions as regards the veracity of the Indian claim of “surgical strikes”, informed:
“What I’m saying is that UNMOGIP [United Nations Military Observer Group in India and Pakistan] has not directly observed any of the… any firing.  They’re obviously aware of the reports of these presumed violations, and they’re talking to the relevant… to the concerned authorities.>>
(https://www.un.org/press/en/2016/db160930.doc.htm)
India, of course, would duly respond in a belligerent manner:
“(India’s Permanent Representative to the UN Syed ) Akbaruddin said the “facts on the ground do not change whether somebody acknowledges or not. Facts are facts, we presented the facts and that’s where we stand.”
( https://indianexpress.com/article/india/india-news-india/india-snubs-un-for-saying-didnt-observe-loc-firing-3060608/)
But, that doesn’t change the UN Spokesperson’s testimony either.
 
Indian Home Minister, Rajnath Singh, during the same time, at a press meet on October 2 (2016):
“Responding to a query [obviously arising out of emphatic Pakistani denial and other contrary testimonies] on whether India would release the video of army’s operation as Pakistan has questioned the Indian claims, Rajnath Singh told reporters to ‘just wait and watch’.”
It’s noteworthy that till today any such video footage remains to be released despite the Home Minister’s enigmatic response.
The release of such footages, by both the sides, is though nothing too uncommon.
(https://indianexpress.com/article/india/strong-retaliation-to-ceasefire-violations-bsf-destroys-pakistan-firing-positions-fuel-dump-5034966/, https://scroll.in/latest/839632/pakistan-army-releases-video-claiming-destruction-of-indian-posts-along-loc).
 
As the armed forces, in India, as also elsewhere, are considered a holy cow, never mind numerous scandals doing rounds – extending all the way from the ones relating to mega defence deals involving top rung officers to sundry corruption cases, e.g. related to army canteens, and periodic stories of “moral turpitude”, the claim, not too compelling on the face of it, having been lodged via an Army spokesman could easily evade tough questioning from within the country.
Even a hint resembling that was promptly labelled as antinational:
(Question:) Do you think by questioning the Indian Army, these politicians are taking an anti-national stance?
(Answer by a former Army Chief, Shankar Roy Chowdhury): Of course. I am also saying it is treachery.
(http://www.rediff.com/news/interview/those-questioning-surgical-strikes-are-treacherous/20161004.htm)
 
That’s quite instructive on how even a fake story can be (or at least attempted to be) placed beyond the pale of any rational, and democratic, scrutiny by putting to use specific organ(s) of the state.
 
X. Now, coming back to the original issue, the charge of a conspiracy to assassinate an incumbent Prime Minister of the country is a too serious one.
 
The basis of the charge is a “seized letter” from the laptop of one of the apprehended, allegedly connected with an entirely different sort of crime – Bhima-Koregaon violence.
And, then, there are two entirely different letters.
One really doesn’t know for certain, as yet, which one is the “official” one.
Or both?
Both, incidentally, appear to be too good, from the point of view of the incumbent regime, to be true.
 
The second one, even more so. Even though it doesn’t talk of the plot to kill the Prime Minister.
Apparently, this was the first version leaked, and would subsequently be replaced by the one which discloses the assassination plot (tweeted by the ANI), but doesn’t implicate the Congress, for whatever reasons.
 
And, most interestingly, such a serious charge is being, till now, handled by the local police – Pune police, in the instant case, and not the NIA, the specialised agency brought into being specifically for handling such cases.
 
Also significant is the fact that the show of reviewing the PM’s security status was staged only in response to Sharad Pawar raising that from a public platform.
 
Lastly, the track record of this regime.
Particularly the, already admitted, fake charge of treason hurled by the incumbent Prime Minister against his predecessor and the previous Vice President of the country just to garner some extra votes in a mid-sized state poll.
 
That should offer us a fair idea of what this regime is capable of doing when faced with the prospect of a tough general election.
 
So, it’s time to sit up.
Otherwise, it’d be too late.

(Note by the author, an activist who compiled this analysis:
The issue appears to be serious. On the face of it, an egregious case of gross misuse of state organs to effect a nefarious partisan project, having serious implications for the fate of “democracy” in the country.)

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