IN INDIA, THE POLICE don’t really have much interest in investigating a crime as the textbook prescribes. It involves hard legwork, cultivating informants, chasing multiple leads, interviews and so on, that any procedural novel from the more developed shores give in great detail because over there, the rule of law is accountable. Here, it is almost a crime if a suspect refuses to cooperate. And so, you often see news reports where extension of bail is sought on the grounds that the accused is not being forthright. The expectation is that confession is a right of the police. And this, despite the Constitution itself giving the defendant the right to not provide anything that incriminates him.
The second item in the police’s limited arsenal is technology, through mobile phone call records which leave a trace of where someone was present, which is legitimate enough. But then the other thing that the police do is coolly take over electronic articles in which the entire life of an individual is stored. They think that it is the easiest way to find evidence, except that not every accused is a criminal. In fact, our jurisprudence, on paper, makes it clear the opposite is to be believed—that everyone is innocent unless held guilty, not by the police but by the courts. Someone shouldn’t have to be paranoid about protecting one’s privacy by keeping his mobile phones and laptops squeaky clean of any traces of deviant behaviour because the Supreme Court itself in a judgment, not too far back, held that the right to privacy is a fundamental one. What anyone does in the confines of their autonomy is their business. But this fundamental right has got very little traction on the ground.
It is therefore a matter of some cheer that the Supreme Court questioned the police thinking they have unfettered access to mobiles and laptops of Indians. The judges termed such all-pervading powers dangerous and sought for guidelines to regulate them. It is not a judgment but an observation at present and the court has only asked the government to come out with a solution. It is still a start. The petition on which the court was hearing the case argues that digital devices contain more sensitive information about a person in them than anything that they may store in their homes. If the police don’t have absolute power to enter your home, what allows them to take your devices? The answer is that they do it because they can. Why wouldn’t they when it makes their job easier, even if it is at the cost of the liberties promised by the Constitution.
There are cases where perhaps such access is warranted but the onus must be on the police to justify it. Just as special laws exist to address specific problems like terrorism where a compromise is made with civil liberties, there must be extreme oversight into allowing access to devices. It shouldn’t be the default option because then no one’s privacy is safe.