“Unchecked powers of the state, often targeted at journalists, are spreading a deleterious chilling effect in society”
– Foundation for Media Professionals,

Petition for framing of guidelines for seizure of electronics

On October 13, it was announced by the Supreme Court that a bench would be hearing a petition seeking issuance for guidelines on the issue of seizure of personal electronic devices by investigative authorities. The said writ petition was brought before the bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia by Senior Advocate Nitya Ramakrishnan, who had requested for a quick hearing. According to LiveLaw, when mentioning the issue, Advocate Ramakrishnan claimed that he would not need more than 10 minutes to present his case. The Supreme Court bench then stated that the case will be heard on November 2, 2023.

Contents of the Petition:

The plea was filed in 2021. As per a reports in LiveLaw, the petition has been filed by five petitioners who are academicians. The petitioners are former Jawaharlal Nehru University (JNU) professor and researcher, Ram Ramaswamy; Professor at Savitribai Phule Pune University, Sujata Patel; Professor of Cultural Studies at the English and Foreign Languages University, Madhava Prasad; Professor of Modern Indian history at Jamia Millia Islamia, Mukul Kesavan; and theoretical ecological economist Deepak Malghan.

The petitioners have claimed in the plea filed in the Supreme Court that the investigative authorities have been employing completely unrestrained authority to seize possession of devices holding a citizen’s personal and professional life. the plea highlights the need to impose restrains on the unchecked powers being exerted by such agencies through the order of the Supreme Court.

“The academic community does and stores its research and writing in the electronic or digital medium, and the threat of damage, distortion, loss or premature exposure of academic or literary work in the event of seizure of electronic devices is considerable.,” the petition stated, as per the LiveLaw report.

In this context, the petition sought directions to police and investigative agencies, working under the control of Central and State Governments for specifying guidelines with regards to seizure, examination and preservation of personal digital and electronic devices and their contents thereof.

In this light, the petition urged that the Central and State Governments, which are in charge of police and investigative agencies, be given specific instructions on the employing such legal and tamed practices for the seizure, investigation, and preservation of personal digital and electronic devices and the data they contain.

Through the petition, it has been pleaded that the powers of search and seizure need to be employed with certain safeguards as they can impact and infringe the fundamental rights guaranteed to the citizens of India.

“The powers of search & seizure, particularly because they engage fundamental rights such as the right to privacy, the right against self-incrimination, and the right of protection of privileged communication, ought to be therefore read and supplied with adequate safeguards such that they are not abused to defeat such rights. It is imperative that this Hon’ble Court lays down inviolable guidelines therefore,” as per the LiveLaw report.

The plea also focusses on the aspect of the academic freedom as being a part of right to freedom of speech under Art. 19(1)(a) and also the right to practice a profession or occupation, and thus states:

“Data that is stored digitally by academics – physical scientists and social scientists may have been collected through extensive field work spanning decades or the results of scientific experiments or calculations similarly representing major effort. If these are tampered with or damaged, the loss to research in the sciences and social sciences is considerable and often irreplaceable. A lifetime’s work is life as much as livelihood. Patentable material may exist or work that runs the risk of being plagiarised. Work may also be stored in ‘clouds’, compelled exposure of which carries all of the aforesaid risks as much as the seizure of physical devices,” as per the LiveLaw report.

The plea has majorly placed its reliance on the judgement of KS Puttuswamy v. Union of India. It reads that “It is imperative to now read the provisions of the CrPC relating to search & seizure viz. Sections 91-105 & 165-166 under a new enlightenment offered by the observations in Puttaswamy. In particular, the provisions ought to be read as a restriction on the fundamental right to privacy, thereby placing the onus on the State to demonstrate the reasonableness thereof,“. 

What has happened in regards to this petition till now?

In March 2021, a Supreme Court bench comprising Justice SK Kaul and Justice R Subhash Reddy had issued a notice to the Union of India in the aforementioned plea seeking guidelines for search and seizure of electronic devices.

Pursuant to this, in August 2022, a bench of Justices Sanjay Kishan Kaul and MM Sundresh had expressed dissatisfaction with the counter-affidavit filed by the Union Government in response to the petition. Justice Sanjay Kaul had orally observed that it was not enough for the Centre to say that the petition is not maintainable while Justice Sundresh had stated that the devices have the personal contents of people which need to be protected. In regards to this, the bench had asked the Centre to also refer to the international practices and then file a new and fresh reply.

“Saying ‘not maintainable’ is not enough… These (devices) have personal contents and we have to protect this. People live on this,” the supreme court had orally observed, as per a report in the LiveLaw.

On November 11, 2022, the Supreme Court had imposed a cost of Rs. 25,000 on the Union Government for not filing the counter-affidavit.

Pursuant to this, on November 27, 2022, the Centre had filed a reply in which they had stated that blanket orders, to return seized devices which are under investigation, cannot be delivered. As per the centre, while right to privacy is implicit in the concept of individual autonomy and liberty, it is not an absolute right and could be subjected to restrictions based on compelling public interest. The Centre had further stated that uniform guidelines for all law enforcement agencies could only be issued after a wider consultation with all stakeholders, including the States, considering the federal structure and the entries in the 7th schedule.

Is this the only petition seeking framing of guidelines seizure of digital devices?

“They (academicians) have a right to protect their work”
– Justice Sanjay Kishan Kaul, Supreme Court of India

In October 2022, a group of journalists had also filed a petition urging for the framing of detailed guidelines on search and seizure of digital devices. A Supreme Court bench comprising Justices KM Joseph and Hrishikesh Roy had issued notice on the same and had tagged the matter with the aforementioned plea filed by the five academicians.

In the said plea, the petitioners had provided that the petitioners told the court that the seized electronic devices, more often than not, contain personal sensitive data, political views and financial information. The petition had provided that there is no existing regulation on the same, granting unlimited power to the investigative agencies. The plea had also alleged that there is interdepartmental sharing of information that is accessed through their electronic devices.

Notably, the said petition had been moved by the Foundation for Media Professionals, assisted by the Internet Freedom Foundation, urging for framing of guidelines that regulate the police’s power to search or seize electronic devices. The petition had also emphasized that the lack of regulation enables the police to engage in dubious practices such as mandating individuals, with or without reasonable suspicion, to grant access to mobile devices making clones of those devices and sharing the information they obtain with third parties or governmental agencies. These practices violate the right to privacy and the constitutional guarantee against self-incrimination.

Recent incidents of seizure of electronic devices belonging to journalists:

“If this is not surveillance, what is?”
– Paranjoy Guha Thakurta, Consultant for Newsclick who was detained for hours and questioned

On October 3, the special cell of Delhi Police had conducted simultaneous raids at a total of 88 locations across 5 cities as a part of the crackdown on Newsclick, a news portal, and its associated journalists, as per a report of the Wire.  As part of the raids, the police had also seized dozens of mobiles, laptops and hard disks belonging to employees and the organisation. As per an article by the Newsclick, the journalist whose electronics have been seized have not been given any clarity regarding the timeline following which their devices will be returned. It has also been alleged that the seizure of electronics was conducted in most cases without any adherence to due process or security measures, such as the provision of seizure memos, hash values of the seized data, or even copies of the data.

It is essential to note here that pursuant to the raids and seizure of electronic devices, a group of media organizations had written to the Chief Justice of India emphasizing upon the need for guidelines on seizure of electronic devices of journalists.

Past incident of arbitrary seizure of electronics belonging to journalists:

“Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”
–  Supreme Court of India

In the year 2022, during the month of November, police had raided the office of digital publication The Wire, and the homes of three of its editors based on a complaint filed by a politician of the ruling party. The police had also seized their mobile phones and laptops. It had taken nearly one year for Siddharth Varadarajan, founding editor of The Wire, to get a court order that provided for the return of the devices that had been seized. According to a forensic analysis by Amnesty International, Siddharth Varadarajan is one of those whose phone had been targeted with Pegasus, a military grade software, in April 2018. It is essential to note that a total of 18 electronic devices and six sim cards had been seized by the police in the said raid, as per a report of Newslaundary.

In the recent years, there has been a surge in the cases of surveillance in India. As per a report of the Thomson Reuters Foundation, dozens of lawyers, activists and journalists were targeted with Pegasus spyware.

In June 2022, the Gujarat ATS (Anti-Terrorism Squad) had raided the Mumbai house of human rights defender, author and journalist Teesta Setalvad and had, without any warrant, seized her two phones. Along with her phones, the Gujarat ATS had also seized a phone that belonged to an office colleague of hers. Even after over a year, the three devices have not yet been returned. It is also essential to note that the Mumbai residence of Teesta Setalvad was also raided by the police as a part of the crackdown on Newsclick.

In fact in June 2022, when Mohammed Zubair was being remanded to a four-day police custody, the chief metropolitan magistrate Snigdha Sarvaria had noted that the journalist has not cooperated with the investigation agencies and issued an order for the police to retrieve the electronic devices – a mobile and a laptop – he had used to post a purportedly offensive tweet. Senior Advocate Vrinda Grover, who was representing Zubair, had raised an objection to the police seizing the journalist’s devices. She had argued that the police already had Zubair’s current phone. Further, she said that a journalist’s laptop, similar to a lawyer, has “sensitive material related to their work” along with personal information. This, she had said, was an attempt to “conduct a fishing inquiry” beyond the scope of the present case. However, the court ordered the police to take custody of Zubair’s electronic devices without explicitly commenting on this argument.

In August 2018, in a case concerning Bhima Koregoan violence, Pune police had conducted raids on the homes of eight activists across India as well as on the homes of the two journalists, namely KV Kurmanath and Kranti Tukula. During the same, the police had seized the electronic devices of the journalists.

The Committee to Protect Journalists had released a statement condemning the raids as well as the arbitrary seizure of electronic devices. The had stated “The indiscriminate seizure by police of electronics with notes and recordings of journalists KV Kurmanath and Kranti Tukula amounts to a serious assault on freedom of the press. These devices should be returned immediately intact.”

An attack on Journalism- a constant fear looms:

Instances such as the simultaneous raids reminds individuals, working to being out the truth, that they can come under the scanner of the government which could lead to self-censorship. In the current scenario, where calculated efforts are being made to suppress any criticism and dissent, it is important that safeguards by the Courts are put in place.

It is pertinent to emphasize the unique, sensitive, and susceptible characteristics of digital evidence, as opposed to any other evidence presented at trial, here considering the digital era that we are living in. At present, there are no legislations or regulations put in place that address the issue of regulating search, seizure, and admissibility of electronic evidence. Even when the electronic devices are seized, there are no established norms that the police and investigative agencies have to adhere to which compels them to stick to a timeline and return the electronic devices arbitrarily seized. The absence of legal frameworks has deemed these illegal seizures of electronic devices to be nothing more than an irregularity.

A deep analysis into the lack of legal protection from seizure of electronic devices can be read here.

Investigative agencies frequently examine and take records without proving probable cause, requirement, necessity or proportionality, as evidenced by the cases highlighted above. The void that exists in terms of protecting lawyers from disclosure of electronic devices have become a tool in the hands of the investigating agencies, and has led to a miscarriage of justice. It is pertinent that the Supreme Court of India protects its citizens from the abuse of law and strict legislations controlling the power of the police of search and seizure are put in place.

Related:

Rules for seizure of electronic devices by Police: A Need of the hour

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

Prosecution Cannot Force an Accused to Divulge Password of Electronic Device: CBI Court

Handling of electronic evidence by agencies a perversion of criminal justice: CCG

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

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Strong social norms, customs and individual beliefs create further barriers to access for women already facing the “economic challenges” of owning and operating a phone, said the new study by Evidence for Policy Design (EPoD), a research centre at the Kennedy School.

No more than 38% of women in India own mobile phones, compared with 71% of men. While this figure varies widely across different socio-economic groups and states, the gender disparity in mobile ownership “exists across Indian society” and is not restricted to poorer, less educated groups.

South Asian countries such as India, Pakistan and Bangladesh remain “clear outliers” for gender-equal mobile phone ownership among nations with similar levels of development–comprising some of the highest gender gaps in the world.

“It’s even more of a puzzle when you see usage and ownership is actually much cheaper here [in India] than in sub-Saharan Africa for example,” Rohini Pande, Rafik Hariri Professor of International Political Economy at Harvard Kennedy School, told IndiaSpend.

“If we were able to pull more women into the labour force and enable greater participation, we could see this translate to greater access to resources.”

Improving mobile phone access can increase the spread of information amongst unconnected communities, including up-to-date market prices, job opportunities, and advice on healthcare and financial services.

A persistent gap
Women consistently trail men on mobile phone ownership and by at least a 10-percentage-point gap in each demographic category.

Variations amongst the sub-population groups highlight the key socio-demographic factors contributing the largest impact on female phone ownership.

For example, rural areas tend to have persistently higher gaps than urban areas.

The gender gap is lowest between men and women with higher education in urban areas at 13 percentage points, yet almost doubles amongst their rural counterparts to 23 percentage points.

There is one exception to this trend, found amongst those with no formal education. In rural areas, the ownership gap was lower at 30 percentage points, compared to 39 percentage points in urban areas.

Mobile Phone Gender Gap, By Poverty, Urbanicity, Marital Status, Education, Age

Source: A Tough Call: Understanding barriers to and impacts of women’s mobile phone adoption in India

Differences in education levels also appear to exert a significant force on the likelihood of mobile phone ownership.

While the gender gap among those with a primary and secondary-level education was 33 percentage points and 29 percentage points respectively, those with higher education had a significantly better gender gap at 16 percentage points.

Below poverty line groups were also found to have a larger gender gap than above poverty line groups (34 versus 29 percentage points).

However, making a simple correlation between increased wealth and reduced gender disparity should be avoided, since a more complex picture emerges when looking at state-wise data.

To some extent, more economically developed states show higher rates of mobile phone ownership among men, indicating that wealth facilitates phone ownership–but some of the largest gender gaps are also found in states with per capita income well above the national average.

Source: A Tough Call: Understanding barriers to and impacts of women’s mobile phone adoption in India

In Karnataka and Punjab for example, where per capita income equals Rs 132,880 and Rs 114,561 (compared with the per capita net national income of Rs 103,219), the gender gap is 37 and 39 percentage points respectively and far behind states with similar per capita income levels such as Gujarat (28) and Maharashtra (29).

One of the lowest gender gaps (19 percentage points collectively) is in the northeastern states, where the disparity between male and female ownership is slightly higher than in both Delhi and Kerala (both 18 percentage points).

Northeastern states, as well as Kerala, have traditionally had matrilineal societies–where descent is traced through the female line and can involve inheritance of property/rights–potentially explaining lower gender gaps and highlighting how community-specific social norms can be more significant than economic development in allowing women access to technology.

The highest gender gaps are found in the northern states of Rajasthan (45), Haryana (43) and Uttar Pradesh (40), states traditionally observed to have the most conservative attitudes.

Additionally, wide variations in the way both men and women use mobile phones exists, both in terms of task complexity and whether they borrow or own the phones they use.

As many as 47% of women who accessed a phone were borrowers rather than owners, compared to 16% of men, according to Intermedia Financial Inclusion Insights (FII) data from 2015-2016. Borrowing rather than owning a phone naturally has implications for independence and practicality.

Equally, women are less likely to carry out more sophisticated tasks on a mobile phone, with the gender gap for simple tasks, such as making/receiving calls, at 15-20 percentage points. Even sending a SMS has a gender gap of 51 percentage points. Social media has the widest gender gap at 70 percentage points.

Gender Gap In Basic And Smartphone Features

Source: A Tough Call: Understanding barriers to and impacts of women’s mobile phone adoption in India

The primacy of social norms
The persistence of low female mobile phone ownership, across all sections of society and throughout the course of a woman’s life, suggests none of the demographic characteristics are “the central cause of the gender gap”, the study said.

Instead factors like social norms and levels of empowerment can explain why ownership gaps remain for “even the most equitable sub-populations”.

At age 10, around 20% of girls use mobile phones, compared to 27% of boys, according to data taken from the India Human Development Survey (IHDS) conducted in 2012.

As adolescents enter puberty, a dramatic widening of the gender gap begins. By age 18, the gap has widened to 21 percentage points and remains in place for the rest of a woman’s life.

Mobile Phone Use By Gender And Age

Source: A Tough Call: Understanding barriers to and impacts of women’s mobile phone adoption in India

Reputation risk, distraction from caregiving duties and rebellion against subservience and patriarchal authority are some of the reasons why families deny or reduce mobile phone access to women, the study found.

The idea that using mobiles phones threatens the preservation of a girl’s purity (particularly important for unmarried young women) is the most prominent barrier to mobile phone access that emerged from the study’s 65 individual interviews, conducted across five states.

While respondents in some regions (rural Madhya Pradesh and some in urban Maharashtra) linked women’s promiscuity to using mobile phones, other respondents were concerned about women being subjected to digital harassment which they had observed in the media (Tamil Nadu, Delhi, Maharashtra, West Bengal).

Communities associate these concerns expressly with female phone usage, rather than male. This is due to the supremacy of preserving a girl’s ‘marriageability’ factor–“inextricably” linked to her reputation–and which is deemed more “fragile” than a boy’s.

Protective parents charged with guarding a daughter’s honour and subsequent marriage prospects ban mobile phone use before marriage or place restrictions (e.g. no uploading pictures to social media or using the phones outside the home), thus leading to a widening in the gender gap during the pre-marriage period.

“When a girl is talking on the phone, they will surely think she is talking to a boy. They never understand that a girl could be talking about her schoolwork,” said one female respondent from Maharashtra.

After marriage, when the parents’ duty is done and the bride has left for her new home, phone ownership is considered reasonable. The newly married woman must be able to keep in-touch with her family and friends, so a phone is often seen as a practical and desirable wedding gift.
Yet swapping one subservient household for another does not necessarily mean barriers to access have reduced, but rather the social pressures in the marital home have replaced those in her natal household.

As “caregivers” women should not be seen to spend too much time on the phone, using it only for “socially-acceptable, ‘productive’” means and focusing on her primary responsibility–taking care of her family and household, the study found.

Empowerment and the way forward
Income and women’s empowerment have similar “explanatory power” as drivers of the gender gap and determinants of mobile phone use, the study said.

Phone usage increased by 10.6 percentage points between the first decile and last decile–data divided into ten equal parts in increasing order–of women’s empowerment, according to an ‘empowerment index’ calculated by analysing female responses to the IHDS survey.

Levels of empowerment were measured by taking a composite average of responses to questions relating to four main themes: Economic engagement, decision-making, mobility and community attitudes.

The empowerment index is the most accurate method available to gauge a community’s perceived norms, since the questions ask women to report what others in their community think and do, according to the study.

The increase in empowerment is similar to that found amongst income decile groups, which registered a nine-percentage-point difference between the first and last decile, indicating that both factors have a similar level of impact on mobile phone ownership
Empowerment and income are inextricably linked however, and policy-makers must consider this when attempting to remove access barriers, the study advised.

Solely targeting the economic challenges of purchasing and running a mobile phone, without considering potentially restrictive social norms, may not be effective.

Measured approaches which reflect on both economic and normative aspects have been successful. Reservations for women and payments to delay child marriage in India is an example where economic incentives have incentivised people to change a societal norm.
If mobile phones can be viewed as “mechanisms to increase rather than threaten” women’s safety and well-being, social attitudes could change, the study suggested.

“Without access to a mobile phone, the most important thing is that you will have a smaller network socially, a smaller network that can help you get jobs and a smaller network that can keep you safe if you’re out somewhere,” said Pande. “Networks are very important for the transmission of information and sharing resources.”

(Sanghera is a writer and researcher with IndiaSpend.)

Courtesy: India Spend
 

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