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Search/Seizure of Electronic Devices - Police State - Surveillance And Art 20, 21

Search/Seizure of Electronic Devices - Police State - Surveillance & Art 20, 21

  1. We human beings in the course of the development wandered in search of food shelter. Later started growing crops and building homes for staying near the crops.
  2. Our homes are our name sake 'castle' where we have things that we like and want as per our interest. However this 'castle' is subject to unregulated search by Police u/s. 102 of CrPC.
  3. 75 years in the Independent India, there is no provisions for taking Warrant from Courts nor it there imposing of burden on the Police to prove its prima facie reasons for such invasive searches.
  4. As is already expounded by several judicial cases, the Electronic Devices such as Laptops, Mobile Phone has changed our lives.
  5. At a time we used to have note books of phone number and contacts, calculator etc gadgets, we need none now.
  6. Essentially, these gadgets [note books, calculator etc] were tools to assists us in our functioning and improving our productivity.
  7. Now, here is the conspicuous part. The sophisticated electronic devices not only have those gadgets, but stores information and data which are personal to an individual. Had these Electronic Devices not been existent, there wouldn't have been any information in it. Its what we refer to as personal data information and privacy. Needless to say we own the devices by paying price and taxes.
  8. Let me restate the above: It is the "Mind" of the person which is stored in a device which the person keeps it personal.
  9. Take example of calculator. If we want to make calculation of 5+7, we type these digits to get the result of 12. Here the typing of the digits 5 & 7 and pressing the key is our 'act�. But our 'intention� is to 'find out� the sum of these digits. We may store it by pressing 'M' key or delete it. So we have the power to delete our act, intention and mind in the calculator.
  10. Further, we as human beings evolve by using the check and error method to proceed. It's a 'mental element', in the decision making process. In each decision making process, we make mental algorithms of permutations and combinations of past information, present information, and expected result, and choose a particular act to be done, and then execute that act. It is only after that we choose several of the expected result the act is executed, and it becomes bench mark information for further 'act/s'.
  11. In Computer terms its Artificial Learning causing 'AI'. For us it is how "Human Intelligence" is formed over of period of time. This also equips us with information and ready to use the information for future.
  12. The source of the information may be either external or can also be algorithmic. Nevertheless, as in case of Artificial Learning and AI, no Human can have full information or intelligence at the outset, and we use information always in the state of check and 'trial runs' to build the HI. Our brain is continuous processing of lakhs of information each micro second.
  13. My typing of this Article is a physical act, which I have learning from Training/Human Learning, + the intention to type, + the thought [concept] in the content of what I have typed. This is stored in the file on my device.
  14. There are certain thought processes that we like [which we retain] and other we don't [which we discard or keep as no hit values]. This is Human DATA SET. And my typing of the article, is what we can call 'Human Data Processing'. This is the entire 'Brain' in a set of function/s.
  15. As your see, we have delegated some of the HI/HDP function to the Electronic device that we own. It is one thing to use a tool, and completely different to keep our information data and mind, in the tool.
  16. Here I note with caution, that the person still has power and control on the device and has right to delete his HI in the device.
  17. So is the device merely a Physical Device? No. It is the Mind & Brain of the Owner. Or atleast the extension of Mind & Brain of the Owner.
  18. Therefore can the 'Mind' of person in the device be used against him? The text book answer is NO, under Article 20(3) of Constitution of India.
  19. Next can the Police take mind of the person in/from the device? Can the Police ask you to give password of your device? If we answer this question in affirmative, we admit that we are in 'Police State'.
  20. Reference may be had to the Narco Analysis Judgment of Hon'ble Supreme Court in Selvi vs State of Karnataka which refers to concept of "involuntary". So unless the person volunteers the HI cannot be accessed from the device. So the police cannot compel the person to give access to his HI, nor can any Court do so.
  21. Reference may also be had to the Judgment of the Hon
  22. I am of the view that the Person should have right to reset and erase his HI in the Electronic Device.
  23. The Court should ask the concerned person, in the quest of determining the 'voluntariness', whether he want to erase the data himself.
  24. However the police have resorted to seizing the devices of the person and using hacking tools and toolkits to gain access to device and the HI therein.
  25. It may be noted that there is no law within meaning of Art 21, in existence; and what is going on is breach the privacy right, and surveillance by the Authorities, as laid in K Puthaswamy Judgement and Pegasus Judgement of the Hon'ble Supreme Court.
  26. Thus involuntary search seizure of electronic devices falls foul under Art 20, 21 of Constitution of India, and the use of Toolkits admits existence of Surveillance and Police State.

Written By: Sandeep Kapatkar, Advocate Pune

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