Can accused persons — especially journalists — in India cite the right to privacy and the Puttaswamy judgement to contest access to their devices? TNM finds out.

Mohammed Zubair, Alt News Co-founder, sitting in a Delhi police van while in custody of Delhi policePTI
Delve Law Thursday, July 07, 2022 - 13:10

The probe against Alt News’s co-founder Mohammed Zubair in a case over a 2018 tweet has widened, and now the Uttar Pradesh police are also probing him in connection with his 2022 tweet calling controversial Hindu extremists “hatemongers”. Zubair is currently in judicial custody and his electronic devices were seized from his Bengaluru home by the police. Legal experts have expressed concern over attempts to implicate Zubair in multiple cases and questioned Zubair’s primary arrest for a 2018 tweet where he posted a movie scene from a 1983 Bollywood movie. TNM takes a look at the rights of accused persons in India and the powers police have to gain access to electronic devices of citizens. 

Summons in one case, arrest in another

Zubair was summoned by the Delhi police in connection with a 2020 POCSO case — in which he had protection — and he appeared before the police on June 27, but he was arrested in connection with a different case altogether. Ordinarily, the police are required to send a notice to an accused person to inform them that they have been booked in a particular case and that they have been summoned. The POCSO case was registered over his tweet calling out an abusive user and confronting him. Section 41a of the Code of Criminal Procedure states that a notice must be sent to the accused person asking them to appear before the police, and if the person does comply with the notice, “he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.”

Supreme Court lawyer and politician Kapil Sibal told PTI that it is “unthinkable” that a person has been arrested for a tweet made four years ago, without any communal outcomes. "More than that, now having realised that the arrest cannot possibly be sustained, the investigating agency is looking for other matters which have nothing to do with the original arrest. What we are witnessing is a mala fide arrest and a subsequent fishing inquiry," Sibal told PTI.

“What the investigating agencies now do is to arrest a person, then start investigating as to what he might have violated. For that they seek access to other records and then come back to court to allege the commission of other offences in an attempt to deny bail to the accused,” he said.

Now, there was no notice sent to Zubair in connection with the 2018 tweet case. Vikram Hegde, an advocate on record at the Supreme Court, says that this is not a routine phenomenon, but it is also not unheard of. The accused in the 2020 Delhi riots case were similarly summoned in a different case and then arrested in another case. 

"There are two ways of seeing it,” Hegde tells TNM. “Protection from arrest in one case cannot apply to another, and just because the police are investigating one case, does not mean that they cannot investigate another. In the sum total of the circumstances, one has to see what the motive was."

Law on search and seizures

There are various sections under the Code of Criminal Procedure where the police are granted permission by law to access the devices of accused persons. Section 91 says that the police can seek access to any document or other thing that is deemed necessary or desirable for the purposes of any investigation, inquiry, or even trial. Section 102 allows police to seize certain property that “may be found under circumstances which create suspicion of the commission of any offence.”

While Zubair’s counsel Vrinda Grover submitted to the Delhi court that the seizure of his laptop —  when the contentious tweet in question was made through an Android device — excessive, the fact is that the current laws in India give enough leeway to the police to seize any material they feel will help strengthen the case. The police, however, said that Zubair was not cooperating with the investigation and that he had come with a formatted phone, and so the police need access to his other devices as well. However, formatting a phone is not an offence per se, says Hegde. 

“The offence of destruction of evidence can happen only if there was an intention to prevent the evidence from being produced before a court or public servant or after he was asked to produce it in court. In this case, unless the police are alleging that he formatted it after getting summons or after having reason to believe it will be summoned as evidence, there is no offence,” he says. 

However, legal experts tell TNM that FIR is a starting point in the investigation and ultimately, there is a broad inquiry, and if the police feel that more probe is required, they don’t need to register a fresh FIR, and the investigation can be brought under the same FIR. There is no law or precedent that says that the police cannot add sections or cannot widen their investigation into a particular FIR. This is what the police also told the Delhi court, that they are probing Zubair for alleged FCRA violations as well, for which they need access to his other electronic devices.

Electronic devices and privacy

Now, can accused persons — especially journalists — in India cite the right to privacy and the Puttaswamy judgment to contest access to their devices? Unfortunately, the answer is no. Though the Supreme Court had held that insisting a person to unlock his mobile phone — which contains his personal information — is violative of the individual’s right to privacy, courts in the past have granted the police access to devices. 

Police access to mobile phones and electronic devices in India has come under scrutiny in India, particularly after instances of leaks and even alleged plants by the police. In 2020,  WhatsApp chats of celebrities accused in the drugs case were selectively leaked to the media. Independent researchers abroad have found evidence that documents were planted on the electronic devices of those accused in the Bhima Koregaon case. 

However, without explicit laws protecting people’s private data — the proposed law on data protection is still a draft and is under scrutiny — it is left to the court’s discretion whether the police can access the accused person’s devices. 

Now, two recent High Court verdicts have cemented the police’s powers to gain access to people’s devices. One was the Karnataka High Court judgement in March 2021, in connection with the Sandalwoods drugs case. Viren Khanna, a celebrity party planner in Bengaluru had been arrested and the police had secured an order from the trial court asking him to unlock his phone and grant the police access, citing his non-cooperation, and even got permission to conduct a polygraph. Viren had cited his right to privacy and the right against self-incrimination to contest the trial court order. However, the court held that compelling a person to give his password, pin or biometrics like fingerprints to open the phone, is akin to “fingerprinting,” “taking sample of the clothes, biological samples, chemical samples, etc” and that the “same cannot amount to forced testimony on part of the accused.” 

The second verdict that empowered the police is the Kerala High Court’s verdict in the Dileep case — where the court said that Dileep cannot cite privacy and deny the police access to his mobile phones. The court agreed with the prosecution that prima facie, the "argument of self-incriminating material" does not stand.

With these precedents, people booked in India often cannot contest police access to their phones. They will face action for obstruction of justice. 

“Under the criminal proceedings, there will be adverse consequences if accused persons refuse to hand over their devices. They will have to seek protection from the court. Moreover, the right against self-incrimination won't apply to the recovery of devices,” Vikram Hegde told TNM. 

The offence of destruction of evidence can happen only if there was an intention to prevent the evidence from being produced before a court or public servant or after he was asked to produce it in court. In this case, unless the police are alleging that he formatted it after getting summons or after having reason to believe it will be summoned as evidence, there is no offence.

Become a TNM Member for just Rs 999!
You can also support us with a one-time payment.