Apar GuptaIndia is passing through a transitory emergency as well as a marked phase of digital authoritarianism, against which the higher judiciary seems unwilling to act
Over 50 years ago, the Supreme Court of India ruled that during an Emergency proclamation, individuals could not challenge illegal detentions. While the ADM Jabalpur case is infamous for its disturbing decision, Justice H.R. Khanna’s courageous dissent is what stands apart. Later, the Court in the Justice K.S. Puttaswamy case recognised both the right to privacy and expressly repudiated ADM Jabalpur as a “discordant note”. Yet, even six years after Puttaswamy, enforcement worries intensify. Recent actions against journalists from the online portal NewsClick, such as raids, seizures, and arrests, amplify the calls for protections of digital data. To speak in a plain manner, many question whether they are living through an Emergency with ADM Jabalpur being dead only in letter but flourishing in spirit.
Aggressive actions by the executive
The Union executive’s aggressive actions against NewsClick, accusing staff of terrorism, reflect a wider issue. India ranks 161 out of 180 countries in the World Press Freedom Index, which considers “legal interference” in journalism. Tanishka Sodhi’s data from NewsLaundry shows that by May 2023, 44 media entities and journalists faced scrutiny from investigative and tax agencies over the previous five years.
An opinion article in this daily by this writer, “Media raids and breaking the silence on press freedom” (March 10), emphasised the serious threats from digital device seizures in these incidents. This pressing danger to the media prompted the suggestion of legal reforms (in the article), proposing guidelines akin to the D.K. Basu case for personal data search and seizure. If the Supreme Court chooses to intervene, what might these guidelines resemble? To understand them we must explore current policing methods, their clash with fundamental rights, and the road to reform.
In the age of instant messaging and cloud storage, the Code of Criminal Procedure, rooted in the time of telegraphs and wooden chests, guides India’s criminal justice process. This approach not only ignores the invasiveness of modern technological advances but also struggles to uphold democratic rights within the Constitution of India.
Chapter 8 of the Code houses the essence of these search and seizure powers. It outlines provisions for voluntary document submission and police actions based on properly obtained warrants. Yet, in the quotidian experience of Indians, these are mere formalities — and formalities are rarely respected. Most people willingly comply with law enforcement demands, even without warrants, fearing heightened risks such as physical assaults or prosecution under an unrelated charge.
The Lokniti-CSDS-Common Cause ‘Status of Policing in India’ report shows that 47% believe that the police can access their phones without consent. Even when acting within the law, the police, with their broad exceptions, can easily sidestep the need for a warrant. Magistrates rarely provide a thorough check, often issuing warrants without detailed review. This already fragile safeguard is further eroded by specific laws such as the Prevention of Money Laundering Act and the Income-Tax Act.
Disturbingly, these provisions clash with the right to privacy and protection against self-incrimination, as stated in Part III and Article 20(3) of the Constitution. In such a climate, the only real safeguards come from technological precautions such as encrypted messaging apps with settings to delete old messages. But even this defence crumbles when a police constable confiscates a smartphone and forces you to unlock it and retrieve your backups. Can the police do this?
The Karnataka High Court, in the Virendra Khanna vs State of Karnataka case determined that an arrested individual can indeed be coerced to unlock their smartphone, granting law enforcement unrestricted access to personal data. This not only affects journalists but seemingly endorses mass searches and stop-and-frisk tactics, currently manifesting as cordon searches — prominently in Hyderabad. Here, officers can intrude into a restaurant or stop people on the road, insisting on phone unlocking and scanning WhatsApp conversations for terms such as “drugs”. While a Central Bureau of Investigation special court has ruled to the contrary and the law is in flux, the confusion results in a guarantee of investigatory oppression.
Each day that this legal vacuum exists results in grave danger to the future of journalism in India. The searches on over 40 journalists who worked with NewsClick, consisted primarily of young freelancers associated with multiple publications. The forceful unlocking of their devices and subsequent cloning of their content uncovers information far beyond the scope of typical criminal investigations. Such access lays bare years of their personal and professional communications, exposing intricate relationships, networks, and confidential sources. Notably, there is a real threat that some of these conversations, particularly those from email and apps such as WhatsApp, may surface on mainstream television, inciting hysterical national security debates. This intrusion is not just because their reports challenge powerful governmental and private sector entities, but also because they critique the Delhi police’s actions directly.
Their interrogations pivot on three significant events: the anti-farm law protests, the North East Delhi riots of 2020, and the response to COVID-19. All these events are not just matters of public interest demanding accountability from the Union Government but also subjects of criminal prosecutions by the Delhi police. The very entity they report on now investigates and knows everything about them.
The quiet judiciary
Even at an individual level, many Indian journalists must feel a deep inner despondency for not only prosecution but also the absence of corrective action by the judiciary. Take for instance the journalist, Paranjoy Guha Thakurta, who consults with NewsClick and was interrogated by the Delhi police. Before the recent seizures of his digital devices, the Pegasus spyware compromised his phone, prompting him to seek the Supreme Court’s intervention. Yet, his case, among others, has not seen a hearing in over a year, even with an order specifying a listing within four weeks. This stupor by the judiciary can easily be shrugged off by addressing cases such as those from Ram Ramaswamy and the Foundation for Media Professionals. These cases advocate for protective measures: compulsory warrants, seizure specificity, protection against forced device unlocks, and hash value generation for secured evidence. When overruling ADM Jabalpur, the top court has also stated, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty.”
Today, the problem seems to be that it is avoiding even making them. Today, our nation is not just passing through a transitory emergency; it is going through a transformational phase of digital authoritarianism. In this difficult time, it is principled journalists who are helping check power and hence maintain India’s constitutional framework that is under clever and muscular forms of challenge. It requires the Supreme Court of India to take the principal lesson of Justice H.R. Khanna’s dissent, which is to act with judicial courage, knowing it comes with sacrifice.
This article was originally published in The Hindu on October 11, 2023.