Gasping for breath — that is how our investigating agencies leave our citizens and now the press. Two recent cases clearly demonstrate that our investigating agencies are a face without a heart.
On September 10, 2021, officers of the Income-Tax Department visited the premises of NewsClick and Newslaundry . According to the Editors Guild of India, NewsClick and Newslaundry are news websites. The visit by the officers was styled as a survey and this was confirmed by the Department to a private news channel. A survey by officers of the IT-Department is governed by Section 133A of the Income-Tax Act.
Also read | We do business with honesty and integrity, says Newslaundry after I-T dept survey
Entry that is limited, specific
Section 133A authorises an income-tax authority to enter premises where a business or profession is carried on. The purpose of entry is limited and specific — to inspect books of account or documents, check or verify the cash, stock or other valuable article or thing which may be found in the premises and furnish such information that the authority may require. A survey is not a fishing expedition. A survey can be carried out only during the time the premises are open for conduct of business or profession.
A statement released by Newslaundry indicates that the officers came to its premises at about 12:15 p.m. and left the next day at 12:40 a.m. Similarly, a statement released by NewsClick suggests that the officers came at about noon and left around midnight. The first question: are the premises of these news websites usually open for business at midnight with the same staff? If not, the officers violated the law in continuing the survey till the witching hour, without any compunction.
Some side issues also arise. For example, what do the officers do for lunch, dinner and snacks when a survey takes place for 12 hours? Do they carry their tiffin boxes and water bottles? What about the people in the premises — can they go out for a bite or are they expected to remain hungry? Can they even inform their family that they have been locked up for several hours and cannot come home?
Section 133A authorises the officers to inspect the books of account, place identification marks on them, and on other documents, and even make copies. They may impound the books of account or other documents inspected by them, for reasons to be recorded in writing. They are also entitled to make an inventory of the cash, stock or other valuable articles verified by the officers. Finally, they are authorised to record the statement of any person in the surveyed premises, though not on oath.
Court’s view
The Orissa High Court has taken the view that the primary objective of a survey is to inspect and if impounding is necessary, specific reasons (not general reasons) must be recorded; the reasons must be recorded at the time of impounding and not even a day later, otherwise the impounding would be bad in law.
Section 133A contains a specific prohibition that the officers “shall, on no account, remove or cause to be removed from the place... any cash, stock or other valuable article or thing”. How much more prohibitory can it get?
Also read | Delhi HC notice to I-T Department on plea by Newslaundry
The legal Lakshman rekha having been delineated, what is it that transpired during the survey on September 10, 2021? The version of the I-T Department is not in the public domain, so it is not known, and perhaps might never be known.
The two cases
In its statement, Newslaundry informs us that its CEO was not allowed to use his phone to contact his lawyer. In fact, he was asked to hand over his phone to the officers. He was asked to comply with on-the-spot directions without taking legal advice. Even a criminal is entitled to contact his or her lawyer and family. Second question: Under what authority of law was the CEO asked to hand over his phone and refrain from contacting his lawyer? Books of account may be impounded, but prohibiting use of a mobile phone, even temporarily?
The personal mobile phone, laptop and office machines (presumably desktops) were taken control of and the data on them or in them was downloaded. Ordinarily, a search warrant is required for this. Apart from anything else, this is a classic case of invasion of the fundamental right of privacy. The CEO was not given a copy of the downloaded data, which is his property and he is entitled to it as of right. On the contrary, he was asked to delete his personal data from his mobile phone within one hour so that they could take it away (which they did). Third question: Why should he delete his personal data?
The I-T Department has accepted before the Delhi High Court that it has “seized” material (including perhaps his mobile phone and laptop) and it is in safe custody. Under which law is not explained. Fourth question: Are officers of the I-T Department entitled to violate the law with impunity and without any accountability?
The sequence of events clearly suggests that the staff of Newslaundry was subjected to some sort of a house arrest or office arrest, cut off from the world for 12 hours and denied their constitutionally guaranteed fundamental rights. Is this permissible?
The fate suffered by NewsClick is no better. NewsClick issued a statement to the effect that 30 employees and support staff were ‘locked up’ (so to speak) for the duration of the survey, that is for 12 hours and their phones seized. If any family member had faced an emergency during those 12 hours, bad luck. To make matters worse, they were prevented from accessing their computers and indeed from working. Why? And under which law? It seems quite clear that the employees and staff underwent office arrest, something akin to house arrest. Fifth question: are the fundamental rights of speech, freedom of the press and privacy suspended during a survey of books of account by the I-T Department? Surely, our fundamental rights are not that meaningless.
The phone of the Editor-in-Chief was also impounded containing private, personal and confidential data. It appears that the fundamental right to privacy is stillborn in respect of some people, particularly journalists. He may have received information from a source that he does not desire to disclose. In law, he cannot be compelled to disclose the source, being privileged information, but a well-planned survey can achieve that purpose. Journalists beware or don’t care - the choice is yours.
Loose papers were taken away from the surveyed premises. It appears that no list was prepared of these papers and no copy of the loose papers supplied to the employees concerned. E-mail dumps were taken of the Editor-in-Chief and the Editor. Sixth question: was the survey a façade for some other purpose? Nobody will know until the next ‘raid’.
More the norm now
So many questions arise from these two surveys and they provide obvious answers, but nobody cares. The issue is not what Newslaundry and NewsClick have done or not done, in terms of adhering to and complying with the law. The issue is whether there is a rule of law prevailing and how easy it is for the authorities to harass citizens if they want to. The other issue is that government officers can get away with just about any abuse of their powers, including unlawful house or office arrest, and this is becoming the norm rather than the exception. There is no longer any respect for the citizen’s rights, including journalists; only a single-minded assertion of unaccountable authority.
One last question. Are the authorities accountable for their actions at any point, or should journalists resign themselves to defenselessly watch the erosion of their rights? Harassed journalists and vulnerable targets may seek the path of least resistance. After all, they have families to feed. They did not set out to be test cases for democratic resilience. Constitutional offices, on the other hand, have a duty to not look away. Have officers forgotten that citizens of India, journalists included, deserve humane treatment under the law or is it that they do not have a heart?
Madan B. Lokur is a retired judge of the Supreme Court of India
