Zubair arrest: Can a journalist be forced to hand over his electronic devices to the police?

While remanding Mohammed Zubair to four-day police custody on Tuesday, the chief metropolitan magistrate Snigdha Sarvaria noted that the journalist has not cooperated with the investigation agencies and ordered the police to retrieve the electronic devices – a mobile and a laptop – he had used to post a purportedly offensive tweet.

The tweet for which Zubair was arrested by the Delhi Police on Monday is from 2018. It contained a still from a 1983 Hindi movie of a signboard that once read “Honeymoon Hotel” repainted to read “Hanuman Hotel”. An anonymous Twitter user with the handle @balajikijaiin alleged the tweet hurt Hindu sentiments. (The account has since disappeared).

Vrinda Grover, Zubair’s lawyer, had objected to the police seizing the journalist’s devices. She argued that the police already had Zubair’s current phone. Further, she said that a journalist’s laptop, like a lawyer’s, has “sensitive material related to their work” along with personal information. This, she said, was an attempt to “conduct a fishing inquiry” beyond the scope of the present case.

However, the court ordered the police to take custody of Zubair’s electronic devices without explicitly commenting on this argument.

Zubair’s case highlights a legal paradox: even though the Indian Constitution recognises the right against self-incrimination as well as the right to privacy as fundamental rights, in several instances, courts have allowed law enforcement agencies to take custody of a person’s electronic devices.

While the law shields certain communications from being forcibly disclosed, such as communication between spouses and those between lawyers and clients, this protection does not extend to journalists and their sources.

Compelled to produce devices

The police have been given powers under the Code of Criminal Procedure, 1973, to seize and search devices, such as mobile phones and laptops, that are necessary for an investigation.

At the same time, Article 20(3) of the Indian Constitution says that no person accused of any offence can be compelled to be a witness against themselves. The Supreme Court has interpreted this provision to mean that while a person cannot be forced to either give testimony against themselves or take polygraph tests, they can be forced to give physical evidence, such as fingerprints or handwriting samples. The restrictions aim at limiting the extraction of “personal knowledge”.

The rationale is that physical evidence is neutral and needs to be compared with some other material to impute culpability. However, testimonies are incriminating by themselves.

Relying on this logic, two High Courts have recently allowed investigating agencies to take the custody of an accused person’s electronic devices.

In March of 2021, the Karnataka High Court held that compelling someone to give the mobile password or their biometrics to unlock a device would not infringe Article 20(3) since it is the “nature of a direction to produce a document”. Merely providing access to smartphones or emails would not amount to self-incrimination as the investigating agency will have to prove the allegations using other evidence.

In January, relying on this judgment, the Kerala High Court also upheld an investigating agency’s right to forcibly access an accused person’s phone.

The Karnataka High Court also said that in case the accused does not co-operate, an “adverse inference” could be drawn against them. It also said that an investigating agency is at the liberty to get backdoor access in case of non-cooperation by the accused.

It also reiterated the legal position that if a search is done without following the procedure, it might be illegal. However, such illegality would not make any seizures made during these searches inadmissible. But courts must be cautious while dealing with evidence collected from illegal searches, it added.

Right to privacy

The right to privacy has been held to be a fundamental right by the Supreme Court. Thus any infringement of that right requires a few conditions to be met. The restriction must be lawful and have a legitimate state interest. It should not be disproportionate to the purpose of the law and must have a rational connection with the objective the state wants to achieve.

While compelling an accused to give their mobile phones or laptops, which contain a trove of information, can lead to encroachment on their right to privacy, this argument has been denied by the courts.

For example, the Karnataka High Court in its March judgment said that giving investigating agencies access to devices or emails for investigation would not infringe their privacy.

It reasoned that investigating crime is a legitimate state aim and asking the accused to merely disclose the password to their device is proportionate and has a causal link with the objective the state seeks to achieve.

The court acknowledged that access to phones and laptops gives the investigating officer “free access” to all the data not only on the equipment but on the cloud servers as well, which may include personal and privileged communication. But it said that using such data during an investigation falls within the exceptions to the right to privacy and its disclosure to third parties will be determined by the court.

Several legal commentators believe that these decisions wrongly interpret the existing law. “The judgments of the Karnataka and Kerala High Courts are particularly concerning,” legal commentator Gautam Bhatia wrote, “because at a time when mobile phones are becoming more and more an extension of our interior lives rather than simple accessories, criminal procedure law should be moving towards greater protection of mobile phone data rather than a position where the State has free access to it.”

However, other courts may arrive at a different conclusion.“The Karnataka and Kerala High Courts’ judgments are the only ones we have on this issue,” criminal lawyer Abhinav Sekhri said. “However, the legal position on compelling the accused to give electronic devices is up for challenge as other High Courts, such as Delhi, have similar issues pending.”

Journalist’s laptop

Zubair’s lawyers also argued that a journalist’s digital devices hold a lot of sensitive information and should not be confiscated. However, in India, journalists do not enjoy higher freedom of expression or privacy as compared to other citizens. Nor do they get protection from disclosing their sources.

While Section 15(2) of the Press Council of India Act, 1978 says that no journalist can be compelled to disclose their sources, this protection applies only to proceedings before the council.

Although the Indian Evidence Act, 1872 gives protection from disclosure of certain communications, it does not protect journalists. For instance, Section 122 says that spouses cannot be compelled to disclose communication made during the marriage, whereas Section 126 accords similar protection to lawyers for their professional communication. However, journalists do not have any such privileges.

In 1983, the Law Commission of India recommended inserting a section specifically to give protection to journalists against revealing their sources. However, this has not been acted on.

While the courts have made some observations on protecting journalistic sources, they have not taken a definitive stance on the matter. In the Pegasus case, where a military-grade spyware was used to snoop on journalists, activists and intellectuals, the Supreme Court noted, “Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.” However, no action has been taken in the case even eight months after the court made these observations and formed a committee to investigate.

On the contrary, in some instances, the courts have asked journalists to disclose their sources. In 2020, Asif Tanha, an accused in the 2020 Delhi riots, had alleged that Delhi Police had leaked his confession to media houses. When Delhi Police denied this allegation, the Delhi High Court asked Zee News to file an affidavit disclosing its source.