No Seizure Of Journalistic Or Academic Materials From Digital Devices Without Judicial Warrant: Academics Submit Draft Guidelines To Supreme Court
The Supreme Court of India,has received a set of draft guidelines by five academicians who had filed a petition before the court seeking guidelines for the seizure of personal electronic devices by investigating agencies.
On Thursday (November 9), the ,matter came before The Bench of Justice Sanjay Kishan Kaul and Jusyice Sudhanshu Dhulia, on November 9, directed Senior Advocate Nitya Ramakrishnan to circulate these guidelines to the Union and the States.
It is important to keep in mind that 2 days back the Supreme Court had expressed its concern on a
petition filed by Foundation for Media Professionals.
The Top Court had expressed concerns about the seizure of digital devices of journalists and told the Centre that better guidelines are needed. Both the petitions are now listed on December 5.
These guidelines have been filed through Advocate S Prasanna
The salient features of the draft mentions that the seizure of electronic devices can only take after a judicial warrant.
It said that the emergency seizure must be an exception, with reasons recorded for not obtaining a judicial warrant.
The guidelines say that in case of emergency and without judicial warrabt ,it has to be told as to why and in what capacity the device is required to be seized.
It also says that seizure should not be permitted on the ground that evidence may be found.
It further says that a privileged, professional, journalistic, or academic materials must be excluded from emergency seizure.
It added that it can only be forfeited
The same will only be allowed upon the ground that the said material is directly part of the crime under investigation and not merely evidence of the same.
About the search, Retention, And Return of Devices/Material,the guidelines state that soon after the seizure of the device, it will have to be produced before an independent agency.
Adding that all the material (irrelevant, personal, and privileged) shall be identified with relevant material be taken with a copy of the same.
The device will be returned immediately after that. Apart from this, guidelines also clarify that there will be no retention of any other excluded material.
It was very clearly mentioned that after the initial examination by an independent agency, in the presence of the owner of the device all unimportant irrelevant, personal, and privileged data should be is identified,and should not be touched.
The irrelevant, privileged, or personal material so excluded must not be retained, and the device itself should be returned immediately after taking a copy of only the relevant material for the investigation or suspect material.
With clear words It was asked that the owners can’t be compelled to give away passwords.
Under situations of search and seizure, the owners of electronic devices cannot be compelled to give away their password unless they legally bound to do so under statutory provisions like Section 69 Information Technology Act, 2000.
It was also clarified that no person shall be summoned by the police to produce their electronic devices whether as witnesses or accused
With respect to the duty of the investigating officer, it was also highlighted that:
The guidelines make it important for the investigating officer to ensure the extraction of relevant information and timely return to the owner his gadgets.
The most important thing to be taken care is that if these basic precautions have not been maintained, the material will not be used in any court or against any person accused of an offence or in any manner whatsoever.
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