Supreme Court directs Centre to ensure there are guidelines to protect media professionals

The Supreme Court directed the union government to ensure there are guidelines to protect media professionals in case of search and seizure of digital devices and to view privacy as a fundamental right in the matter. The matter will be heard on 6 December.

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia were hearing a public interest litigation filed by Foundation for Media Professionals seeking a law and comprehensive guidelines on the search and seizure of digital devices by law enforcement agencies.

Pronouncing the order, Justice Kaul said, “Better guidelines need to be in place to protect media professionals and there has to be a balancing of interests. Additional solicitor general requests for some time to better examine the matter so that he can make submissions. We have however put to the learned ASG that there has to be a balancing of interests. We would like the learned ASG to work on this and come back on this issue. This is more so in view of the aspect that privacy is held to be a fundamental right.”

While seeking an adjournment of the matter, Additional Solicitor General SV Raju insisted that the matter was extremely complicated and there were several legal issues that needed to be examined.

Senior advocate Siddarth Aggarwal, appearing for the petitioners, said the law enforcement agencies seemed to enjoy unfettered search and seizure powers and it posed a threat to guarantees provided to citizens by the Constitution. “The issues raised in this petition are significant because there are no guidelines with reference to what may be seized, what can be accessed, what kind of protection is ensured for personal data. The entire digital footprint is on that one device. There are several journalists whose digital devices have been taken away. Once an investigating agency is involved, the person does not even get to have a back-up of the data,” pointed out Aggarwal.

Though Raju insisted that there were guidelines in place, Justice Kaul stressed that this was a grave matter. “If you take everything away, there's a problem. These are media professionals who will have sources and other personal matters. There have to be guidelines. You must ensure that there are some guidelines,” said Kaul.

Countering Kaul, Raju repeated that the investigating agencies could not be kept out. "You cannot shut out the investigating agency completely and totally."

However, Justice Kaul reiterated, “I'm finding it difficult to accept some kind of all power that the agencies have. This is dangerous. You must have better guidelines. If you want us to do it, we'll do it. But my view is that you ought to do it yourself. It's time that you ensure that this is not misused. A state can’t be run only through its agencies. We'll give you time, no difficulty. But you must analyse what kind of guidelines are necessary to protect them. To some extent, this is not adversarial in that sense.”

Adding to Kaul’s observation, Aggarwal said, “Everyone considers the media as a common enemy because truth is something that comes through us.

“I agree that the media has rights,” Raju interjected, "But they are not above the law.” Responding to Raju, Aggarwal underscored that they just wanted the law to be laid down and guidelines framed and followed.

In the writ petition filed by the foundation, it states that personal digital devices have become extensions of people, and such devices contain vast amounts of personal and intimate data, and that existing legal safeguards are insufficient to adequately protect an individual’s constitutional rights.

“There is a legal vacuum when it comes to the balance between the right to privacy in the digital space and the legitimate interests of law enforcement agencies. This legal vacuum has facilitated ongoing and continuing police practices of dubious constitutionality, such as cordon searches, roving and fishing demands for accessing mobile devices and making ‘clone’ copies of their complete contents, and compelling arrested persons and potential witnesses to unlock their mobile phones,” stated the writ petition.

The foundation pointed out that law enforcement agencies compel people to hand over their digital devices and this casts a serious and indelible chilling effect across the society generally and within the journalist community, which has not been able to fully exercise its basic constitutional freedom of speech and exercising one’s profession.