Do Police Have The Right, To Unfettered Access, To Your Phones, Laptops?

Smitha Nair interviewed Senior Advocate Rebecca John to ask some fundamental questions about the way police get unfettered access to phones and laptops of people, even before someone is getting declared accused.

On Alt News co-founder Mohammed Zubair’s electronic devices being seized, the senior advocate said, “I’d have imagined that the fundamental question a magistrate would ask in such a case is– here is the tweet, the man is not denying the tweet, why did you need the device? Clearly, there is no nexus.”

Rebecca John further said, “Law on digital evidence giving unfettered access to investigating agencies to every part of your life is vague and ambiguous-
We don’t have statutory provisions which control the right of police to seize electronic data.”

The senior lawyer mentioned, “Time has come for judicial guidelines as to circumstances under which these electronic seizures can be made. Can you compel a person to give a phone? Does that not amount to self-incrimination? Post privacy judgement, is important to draw boundaries of this power.”

She pointed out other situations as well, including Ordeal for rape survivors. “Police take their phones, and allow accused cloned copy- exposing her to the most vicious cross-examination in court, over incidents, and relationships that have no bearing on the facts of this case, which relate to years before the crime was committed.”

Rebecca claimed, “Magistrates are the first line of defence as far as the accused person is concerned. He is produced before the magistrate, he expects the magistrate to protect his rights. Every magistrate must be mindful of abuse, and must insist on certain basic safeguards.”

And pointed out, “In the iconic dissent of Justice HR Khanna in ADM Jabalpur case, he said – the defence of personal liberty is the defence of procedure. Procedural law is of utmost importance to ensure the rights of citizens. That’s all we seek from our subordinate judiciary.”

On Hyderabad police stop and search, Rebecca said, “I’d imagine this is just the kind of case, where a court should take suo moto notice and ask the police, under which provision of law have you got the power to randomly stop motorists and ask them to submit their mobile phones to you for inspection. ”

“All of this comes because I think we have steadily ignored the price that individuals pay when we don’t adhere to procedure. At some point the courts have to get proactive and insist that the law isn’t just for police agencies, the law is for the citizens.”

On Bhima Koregaon and the alleged planting of evidence, she said, “When you have extraordinary evidence which suggests that there has been tampering, then it is the duty of constitutional courts to step in. Extraordinary powers are available to constitutional courts.”

The interview has originally published at Scroll.in.