21 Feb 2023 4:00 AM GMT
Traditionally, under the law and the Constitution, the process of search and seizure by authorities was legal only when backed by a warrant showing probable cause. This principle is the bedrock of individual liberty and privacy against the tyrannical state in the common law world. In the words of Lord Camden in 1763 in Huckle v. Money, “To enter a man's house by virtue of a...
Traditionally, under the law and the Constitution, the process of search and seizure by authorities was legal only when backed by a warrant showing probable cause. This principle is the bedrock of individual liberty and privacy against the tyrannical state in the common law world. In the words of Lord Camden in 1763 in Huckle v. Money, “To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition.”
The rapid expansion of the regulatory state in the last century meant that the powers of the state to carry out search and seizure operations or their variants under various laws increased manifold. S. 133A of the IT Act provides for tax surveys that allow the taxman to look at accounts and other documents, without any requirement for even “reasons to believe” though this section does not allow them to be seized. It is clear that S. 133 A requirements are much easier to meet than the requirements to obtain a warrant under penal statutes. Thus, there may be a temptation to carry out a search and seizure under one law to obtain information that would unavailable without a warrant under another law. For example, because it is easier to make a case to conduct a tax raid than to make a case for a warrant to carry out surveillance, the tax authorities may raid a target, collect all the relevant information regardless of the link to tax, share the information with other government agencies at their will. The result- all the information is gathered without going through the rigor of a warrant. Another example- selective and often partial leaks of information to the press resulting in damage to the reputation of the target, perhaps to further a “narrative” or commercially damaging leaks of confidential information and trade secrets. This kind of lawlessness, where the requirements of law meant to protect citizens are bypassed by legal subterfuge, is clearly an affront to the rule of law as well as privacy.
By their nature, news organisations rely on confidential sources and whistleblowers. It is not hard to imagine the chilling effect on the free press if journalistic privilege can be bypassed in this manner. Would “Deep Throat” reveal Nixon’s secrets to the Washington Post if he knew that the government could get his name by the ruse of a tax investigation into the newspaper?
The “due process” concerns caused by the colourable exercise of the powers of search and seizure are not particularly difficult to address, both under statute and under the Constitution- particularly in the light of the Puttaswamy judgment of the Supreme Court. First, only such information should be collected as is strictly necessary for the purpose of the investigation pursuant to a lawful warrant. In a tax raid, there is no justification for collecting the names of confidential journalist sources. The wide powers of search and seizure must be read down using the well known principles of proportionality and purpose limitation. Two, the information collected should not be shared with any other government agency in the absence of that agency getting a warrant or a specific provision of law permitting the same for limited purposes in limited circumstances. No government agency in a democracy ought to get information of any citizen without being able to make a case for a warrant. In the words of Lord Wilkinson Browne, Dossiers of personal information are the badge of the totalitarian state not democracies that respect the rule of law. Third, all information collected by the state must be treated as strictly confidential and no leaks should be permitted or tolerated. There is a public duty of care owed to persons whose property or information is seized pursuant to public purposes. Fourth, there must be a clear policy to return and destroy the relevant information in the custody of any state agency.
The basis of these principles is the understanding that persons have a right to their privacy and their property and that if the state wishes to limit these rights, it must do so strictly as per law. In England they are a part of a general duty of care under common law. In India, they flow from the right to life and liberty under the Constitution.
In 2021 after an IT Survey in which a vast quantity of data and electronic devices were seized, web portal Newslaundry filed a Writ Petition praying for directions that the sensitive data collected should not be “leaked” to the press or shared with other government agencies for purposes other than the tax survey for which they were collected. The Writ Petition was disposed of on the basis of an undertaking given by the Tax department not to leak information and as such the Court did not have the occasion to address the significant rule of law challenge the case represented.
The fact that the Delhi High Court recognised the importance of the issue was a laudable first step towards addressing rule of law concerns arising from overarching powers of search and seizure. As cases on this issue pile up- there are Petitions pending in the Supreme Court on search and seizure of digital devices- one hopes the courts address these concerns more fully.
The author is an Advocate-On Record at the Supreme Court of India and also a Solicitor in England and Wales. Views are personal.