SC asks CBI to embrace change in privacy plea over e-devices' seizure

The world has changed and the CBI should also, the Supreme Court observed on Monday while hearing a plea seeking guidelines for probe agencies on seizure, examination and preservation of personal digital and electronic devices and their contents.

During the hearing on Monday, the counsel appearing for the petitioners said the manuals for investigation agencies are being updated the world over on the privacy issue.

A bench of Justices S K Kaul and A S Oka observed that the Central Bureau of Investigation manual, which provides for the procedure to be adopted during an investigation, might need updation.

"The world has changed, CBI should also change," Justice Kaul said.

Justice Oka observed that he has seen the CBI manual and it might need updation.

The Centre, in its affidavit filed last month in the apex court in the matter, has said it would be appropriate to take suggestions/objections from all quarters on an issue concerning the enforcement of law and investigation of crimes as law and order is a state issue.

The affidavit said as far as the apprehensions of the petitioners are concerned, the vast majority of them can be addressed by adherence to the CBI manual 2020.

"It is submitted that the importance of the CBI manual has been noted by this court previously, and in tune with the same, the manual was redrafted and published in 2020," the Centre has said.

It said the manual has various provisions dealing with the present subject matter and would substantially allay the apprehensions of the petitioners while balancing the competing legitimate state interest within the confines of the Indian Constitution and statutory framework.

"In light of the above, it is submitted that most agencies have the procedural SOPs (standard operating procedures) on the subject matter and the CBI manual, in a detailed manner, deals with the subject of digital evidence and designs a procedure along with significant safeguard which is in tune with the statutory and constitutional provisions in the country," the affidavit said.

The Centre said it would be appropriate that the suggestions of the Union of India along with the relevant portions and the CBI manual be provided to the relevant authority in various states before any exercise of laying down guidelines at a national level is considered as law and order and investigation of crime is primarily a state subject.

Additional Solicitor General (ASG) S V Raju, appearing for the Centre, told the bench on Monday that they have filed an affidavit and the matter can be fixed for hearing on a non-miscellaneous day.

The bench posted the matter for hearing in the week commencing February 7 next year.

One of the lawyers, appearing for a petitioner organisation in a separate connected matter, told the bench that issues raised in their plea were wider and the Centre should file their response to them.

The bench, which granted eight weeks to the Centre to file a counter affidavit to the petition filed by the organisation and de-tagged it, posted it for hearing after 12 weeks.

While hearing the matter in August, the apex court had observed that it was not satisfied with the Centre's affidavit filed on the plea.

"We are not satisfied with the counter affidavit filed and have called upon ASG to look into the material placed on record including about international practices to ensure that the proper stand at an appropriate level of the Government of India is placed before us," it had said in its August 5 order.

The bench had then observed that electronic devices contain personal information and content which need to be protected.

The top court had in March last year issued notice to the Centre on the plea, filed by five academicians, which sought guidelines with regard to seizure, examination and preservation of personal electronic devices and their content.

The plea has said the power of search and seizure concerns rights, such as the right to privacy, and adequate safeguards should be there.

"Today, there are no specific and binding norms to guide the exercise of such power. Electronic data and devices are a class apart from any other physical object or thing. They contain an entire professional and personal world, most of which is no concern of any investigation. Data is amenable to easy change and remote tampering," the plea has said.

The petition claimed the "entirely unguided power" exercised by the investigative agencies to take control of personal digital devices that contain much, if not all, of a citizen's personal and professional life, requires to be civilised by way of directives from the apex court.

It has sought the court's directive to ensure the search and seizure of digital devices by investigative agencies are by a procedure that safeguards the right to privacy, right against self-incrimination, and confidentiality of professional work among others.