The haste with which the Delhi Police acted to seize phones, iPads computers from senior employees of The Wire in their homes and from the news site’s office on Monday is disproportionate and in sharp contrast to official action in similar cases, legal experts said.
These devices could contain information about other investigations that the news website might be pursuing and compromise the identity of confidential sources, they say.
On Monday, the Delhi Police sent officers to the homes in Delhi of The Wire’s founding editors Siddharth Varadarajan, MK Venu and deputy editor Jahnavi Sen and in Mumbai of founding editor Sidharth Bhatia and business head Mithun Kidambi to seize their electronic devices after a complaint by Bharatiya Janata Party social media cell head Amit Malviya.
The police also conducted a search at The Wire’s office in Delhi and seized two hard disks used by the website’s accounts staff. The police also physically pushed The Wire’s lawyer out of the office, the news website alleged.
These seizures were carried out under a notice sent under Section 91 of the Code of Criminal Procedure, which allows the police to issue summons to a person to produce materials necessary for an investigation.
The search and confiscations come two days after Malviya filed a complaint against The Wire for cheating, forgery, criminal defamation and criminal conspiracy. This complaint related to a series of stories published by The Wire in October which claimed that Malviya had special privileges through an Instagram programme called “X-Check” that would instantly delete posts he reported.
On October 23, after determining that their articles had been based on fabricated documents, The Wire retracted them. On October 29, it filed a police complaint against its researcher Devesh Kumar alleging that he had “fabricated and supplied documents, emails and other material such as videos with a view to damaging The Wire and its reputation”.
Procedurally incorrect
Experts questioned the need for the hurried overnight action against The Wire, involving large contingents in two cities. Criminal lawyer Shahrukh Alam said that the seizure was carried out under a Section 91 notice, which is a summons to produce documents or other material for investigation at an appointed time and place. But it seemed that this notice had been used to illegally enter The Wire office and its editors’ homes.
“Having issued such a notice, why would the police not wait for the devices to be produced at the appointed time?” she said. “Why would they use the pretext of the notices to blur boundaries between a summons and a search?”
This was procedurally wrong, she said. The police would have ideally required a search warrant to conduct a search. “[But] in the facts of this case, they would not have easily got a search warrant,” she said.
Moreover, there is no reasonable connection between the apparent investigation – into cheating, fabrication and defamation – and the seizure of devices, she said. “What are the investigators hoping to find, in a situation where the editors are admitting that the emails were fabricated and have retracted their story based on said emails?” Alam asked.
The operation seemed more like a roving enquiry, she said. “To my mind, it is a very serious breach of privacy,” Alam said.
Complaint against Kumar?
Since the police are required to take action that is proportionate and least restrictive, they might have first enquired into the “admission of mistake” and the explanation already offered by The Wire, Alam said. The news website had already accepted that the stories were based on fabricated documents and is claiming that Kumar forged them.
She added, “Without acting on the explanation, you choose to bypass it for no apparent reason and come and seize all devices in sight.”
Lawyers also questioned why the police have not seized the devices of Kumar, whom The Wire alleges fabricated the material on which these articles were based.
Criminal lawyer Vrinda Grover asked why Malviya had not named Kumar in his complaint when The Wire is “upfront saying they have been misled and deceived”.
“How has the Crime Branch not issued a notice to Kumar?” she said.
Confiscation unwarranted
Lawyers also criticised the confiscation of devices pursuant to a Section 91 notice. Notices under this section have to specify which documents and devices are required. “It cannot be a fishing and roving enquiry,” said Grover. “The police cannot use this as an open-ended catch-all occasion for shoring up of devices, documents and electronic data stored in computers, phones and other devices.”
This was even more important in the case of journalists, she said. “As their devices are bound to store a lot of sensitive data and material pertaining to a large number of stories, and the state agencies would be interested in getting access to such material,” she said.
Grover noted that The Wire had been part of the consortium that published an investigation on Pegasus, a military-grade snooping software allegedly used by governments to spy on dissidents.
Besides, after confiscating the computers, iPads and phones, the police should have also given the owners a “hash value” of the devices, she said
A hash value is a unique number used to ensure that a device and its data have not been tampered with. “If the police has seized electronic devices without providing hash value then the electronic data and devices are all vulnerable to tampering and manipulation in police custody,” Grover said.
Grover said that this was a recurring problem. “It is very interesting that the Delhi Police arrives with a large posse of policemen but conveniently is not accompanied by a technical expert to extract and provide a hash value,” she noted.
Discriminatory action
Legal experts said that the police rarely act with such swiftness in other cases. “It is apparent that the police don’t act with such alacrity when it comes to complaints made against people who have the protection and blessing of powers that be,” said senior advocate Sanjoy Ghose.
He said that the Delhi Police had not conducted a similar investigation in cases such as that against former BJP leader Nupur Sharma. Sharma had made allegedly religiously provocative comments in May, which led to a spate of protests and violence across the country.
“[But] when it comes to people like Mohammed Zubair or Vardarajan, the alacrity with which the police acts only leads to an impression that there is an absence of even-handedness,” Ghose added.
In May, Zubair, the co-founder of fact-check website Alt News, was asked to hand over his electronic devices that he used to make a tweet that allegedly hurt religious sentiments.
The searches on The Wire were used to “create a spectacle”, Grover suggested. “If you’re just coming for a few devices and you don’t need to arrest anyone, why will you come with a posse?” she asked. She wondered whether this was an attempt to intimidate independent media outlets.
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