"Isn't this snatching away a journalist's livelihood?" That was the question posed by an Indian journalist after the news portal he worked at was raided and police seized dozens of mobiles, laptops and hard disks and interrogated reporters about the stories they had worked on and the company they kept.
"My phone was taken from me and all the data was extracted from it – my WhatsApp and Signal conversations, my contacts, and my photographs," says Paranjoy Guha Thakurta, who consults for NewsClick, an independent website whose coverage has usually been critical of the government.
The raids on NewsClick, which took place on October 3, led to the seizure of the phones and laptops of close to 50 journalists associated with it. The revelation that the police seized years' worth of email and phone records has drawn criticism from journalists and press rights groups, which flagged the repeated instances of the Indian government pursuing the private communications of a journalist.
"The message is: 'If you are a journalist taking views that the government does not welcome, then they can take your livelihood away,'" says Paranjoy.
The raids on NewsClick employees were the latest of more than a dozen instances in the last five years of police seizing the devices of journalists and activists in India.
In one of the other cases, the phones of a reporter and cameraman from the Malayalam news organisation Mathrubhumi were seized by the Kerala police for capturing visuals of an accused in a train arson case.
The reporter Felix, 29, and the cameraperson Shaju, 38, captured the visuals of Saifi, accused in the Elathur train arson case when he was being brought from Maharashtra to Kerala on April 5. “They did not think much of it because they were filming the accused after the Maharashtra police had paraded him in front of the media the same day,” says an official from Mathrubhumi. “And yet, the phones of both the reporter and cameraperson were seized,” says the official.
Chapter VII of the Code of Criminal Procedure (CrPC) lays down that a sanction from the court, in the form of a warrant, is required for conducting searches. Section 165 of the CrPC allows an exception when an immediate search is necessary, but even in such cases, the police need to provide the reasons for conducting the search.
“We did not receive a copy of the FIR for 15 days and there was no reason given for the seizure of phones,” says the official from Mathrubhumi. “The phones were kept with the police for two months…How is a reporter and a cameraperson supposed to work without a phone?” asks the official.
In the context of police raids, the Information Technology Act states that a hash value of the items that are confiscated must be taken. A hash value is the equivalent of a fingerprint for files, and it changes if the contents in the device are altered after the seizure. The police are bound to generate hash values of the seized devices, record them in the seizure memo and provide a copy of it in case the person facing the raid is seeking it.
“I asked for a hash value but I was not given one,” says Paranjoy Thakurta, whose phone was seized in the NewsClick raids.
The 68-year-old is a veteran in the Indian media space and was the only Indian journalist referred to in the sensational Hindenburg Report published in January this year on the Adani group. He has doggedly pursued stories on business and politics in his career. “My data may be compromised, and I won’t even know if anything is added to my device,” Paranjoy says. Police’s questions to Paranjoy, centered around his communications on Signal, an encrypted instant messaging and calling application.
The threat to privacy was the overriding worry for most journalists TNM spoke to, particularly after a series of investigative reports exposed how key evidence cited in the chargesheet was actually planted on the devices of activists Rona Wilson, Surendra Gadling and Stan Swamy in the Bhima Koregaon case.
Paranjoy says that the seizure of journalist’s phones could have worrying implications. “Today, a mobile phone has become the extension of a person's body. It is unlike any other device,” he says. “And when it is taken away from you, not everyone has the means to replace a phone immediately. If a journalist is not able to call people or write stories, isn't that snatching away their livelihood?” he asks.
Moreover, it also puts sources the journalist is in touch with at risk.
Indian law does not protect journalists against forcible disclosure of communications with sources. In March 2021, the Karnataka High Court held that Article 20(3) is not infringed upon when someone is compelled to give their phone password or their biometrics to unlock a device since it is the “nature of a direction to produce a document.” Simply the act of providing access to phones or emails would not amount to self-incrimination since the investigating agency will have to prove their allegations using other evidence.
Even though such access could lead to a trove of information for the police, the argument that infringes on an individual’s privacy rights has been denied by the Karnataka High Court, as well as other courts in the country. In January 2022, the Kerala High Court relied on the Karnataka High Court judgment to uphold the police’s right to forcibly access an accused person’s phone.
This reporting is made possible with support from Report for the World, an initiative of The GroundTruth Project.