In what could be a shot in the arm for champions of individual privacy the world over, the U.S. Supreme Court ruled last week that a law enforcement agency could not search a telephone belonging to a suspect or any other person without obtaining a search warrant from the competent judicial authority. The investigator may have entered some premises under a lawfully obtained warrant. But if he chances to come by a telephone in the building, he would need another authorisation to examine the instrument to explore whether it had any stored information pertaining to the probe. In support of this unanimous decision by the nine-judge Bench, Chief Justice John G. Roberts Jr. declared: “Modern cell phones are not just another technological convenience…With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’.”
More than just technology The Court would not buy the argument that in a real emergency the officer concerned could not afford to spend time securing a warrant. The State attorney argued that there were twin dangers in waiting for a court order: one, a phone could be used to trigger a timed explosive device and two, waiting for a judicial approval could facilitate the person under investigation obliterating vital information contained in the phone that could otherwise establish his criminality or of anyone acting in concert with him.
The State representative at the Court could not, however, cite a single instance in which a phone had been used to set off an explosive. As for the danger of losing information, if one had to wait for court consent, the judges referred to various methods by which a telephone could be disabled against sabotage or even minimum tinkering till search permission was received. The U.S. Supreme Court’s decision came a few months after it heard two cases in which the defendants questioned the validity of evidence collected by the police following a warrantless search of their telephones. In the first case, Riley v. California , a State appeals court did not see any illegality in the police looking into the telephone of an individual detained for driving an automobile with an expired permit. In the other case, United States v. Wurie , the federal appeals court in Boston annulled the evidence collected from a drug dealer’s phone for which the authorities had not obtained a warrant. The acute difference in perception between the two courts situated on opposite sides of the country had generated huge national interest, and it was anybody’s guess as to what the highest court of the land was going to do. It was much more than technology and its immense canvas that was at stake.
There are two fundamental issues here. Telephones, especially the handy mobile phones, have become ubiquitous and are being used by their owners to store vital information, not only because of the convenience involved, but the confidentiality they afford. Second, in the hands of investigating agencies they become an invaluable tool from which to ferret out evidence. It is our experience that even the most unlettered and inarticulate investigator these days resorts to a cell phone to search for the missing pieces as soon as he sets off for an investigation.
The Indian situation The U.S. ruling is of great interest to law enforcement agencies in India. The Indian police are especially known for their arbitrariness. Respect for the statutory procedure is minimal, especially with regard to fundamentals of criminal investigation, such as prompt registration of a complaint, search of a crime scene and the arrest of a suspect. Non-registration of complaints, informal and illegal detention of suspects and searches without a warrant are a regular feature. When this is the case it may be preposterous to demand that the examination of the contents of a phone must be preceded by court permission. As far as we know, courts do not take umbrage at the practice of investigating officers using questionable methods to collect data contained in a phone. In fact, no questions are asked by the judge, and he simply laps up what is presented without checking how exactly the material was seized. It may take decades for us to make it obligatory for investigating agencies to obtain an exclusive warrant to examine the contents of a telephone. An apex court ruling on the subject will greatly help.
This brings us to a critical examination of an allied issue, namely, monitoring of telephones during or immediately preceding an investigation. This is a hugely contentious subject. We have had far too many scandals for our comfort. The relevant law in our country is Section 5(2) of the Indian Telegraph Act 1885 as amended in 1972, which permits interception by the prescribed authorities during a ‘public emergency’. Orders authorising such interception shall be passed after due application of mind and after recording reasons for doing so.
The legal position is that such an order of interception will be passed only if other means were not available to acquire the desired information. Two Supreme Court rulings are relevant here to highlight how the power to intercept telephonic communications are to be exercised keeping in mind Article 21 (dealing with the right to life and personal liberty) and Article 19(2) (which empowers government to impose reasonable restrictions on the citizen’s enjoyment of fundamental rights). In Hukam Chand Shyam Lal v Union of India (1976), the Court observed that the power to intercept could not be “unguided and unbridled”, and said that only “public emergency” permitted the exercise of such authority. In the PUCL v Union of India (1997), the Court declared that “public emergency” and the “interest of public safety” were the only criteria that permitted telephone monitoring.
Pursuant to the procedural safeguards mandated by the Court in the PUCL case, the Indian government incorporated Rule 419A in the Indian Telegraph Rules 1951 (amended in 2013) which requires a Review Committee both at the Union and State levels that would ensure that all orders of interception were reasonable and justified, and did not extend beyond 90 days in the ordinary circumstances, and 180 days in extraordinary situations.
In our view the law on the subject of telephonic interception is reasonably clear and enough safeguards have been built into it. Nevertheless there is a feeling of civil servant arbitrariness driven from the backstage by political executive caprice and malice. This is dangerous and it does not augur well for the future of our democracy. The trend should be one of more and more restrictions on the power rather than any liberalisation.
The unbridled growth of terrorism should be handled separately by a stringent law, and it should not be used as an alibi to further erode the liberties of the average citizen who is proved to be not mixed up with anti-national elements who subscribe to terror and disruption.
(R.K. Raghavan is a former CBI Director and Abudu Kumar is an advocate of the Madras High Court.)