Right to privacy is not absolute and can be subjected to restrictions, the Centre told the Supreme Court on a petition seeking guidelines to law enforcement agencies on seizure, examination and preservation of digital and electronic devices and their contents, Live Law reported on Sunday.

The court was hearing a writ petition filed by five academics, who have sought directions to the investigating agencies and the police, including seeking permission from a judicial magistrate before accessing or seizing electronic devices and specifying how the material is relevant or linked to the alleged offence.

In a counter affidavit filed on August 5, the Centre had stated that the plea was not maintainable. However, the court was not satisfied with the government’s response and had asked the Centre to file a fresh response.

On November 11, the court had imposed a fine of Rs 25,000 on the Centre for not replying to the plea. A bench of Justices Sanjay Kishan Kaul and AS Oka had asked the government to file the response within two weeks.

In its latest reply, the Centre argued that any blanket order regarding the return of digital and electronic devices of a person under investigation would be inappropriate, according to Bar and Bench.

“While the right to privacy exists in all jurisdictions across the world, the regulation of same through statutory law is permissible and there can be no blanket exclusions,” the Centre said.

It also said that the accused persons in such cases may be allowed to seek cloned images of the hard drives of the devices seized by the investigating agencies, reported Live Law.

The plea

The petition has been filed by Jawaharlal Nehru University professor Ram Ramaswamy, Savitribai Phule Pune University professor Sujata Patel, professor of Cultural Studies at Hyderabad’s English and Foreign Languages University Madhava Prasad, professor of Modern Indian history at Jamia Millia Islamia Mukul Kesavan and theoretical ecological economist Deepak Malghan.

In the case of urgent seizures, the petition submitted that reasons for not seeking permission should be provided to the owner of the device in writing. The owner of the electronic device should not be forced to reveal passwords, ideally, a copy of the hard drive should be taken and not the original, and the hard disks must be examined in the presence of the owner of the device.

“The powers of search and seizure, particularly because they engage fundamental rights, ought to be therefore read and supplied with adequate safeguards such that they are not abused to defeat such rights,” the petition stated.

The plea also mentioned that several persons from whom devices have been seized in alleged offences registered in the recent past belong to the academic field or are noted authors.

“The academic community does and stores its research and writing in the electronic or digital medium, and the threat of damage, distortion, loss or premature exposure of academic or literary work in the event of seizure of electronic devices is considerable,” the petition added.