The power of search and seizure is given to any investing agency to procure suspected or relevant ‘documents’ or ‘things.’ It is limited to the factual circumstances of each case and such power has its limits. However, such power is now viewed as attached normative behaviors of people in malversation. Of course, it happens due to a lack of knowledge of civilians going through such victimization and the uncanny approved behavior of agents in society. This suspicion and relevancy should not contravene the ground norm of the country.

Here we are to reflect on whether mobile phones of individuals can be procured by the investigating agencies at their discretion because there are no guidelines for such procurement. Raids of the discernible overreach of the power of search and seizure have gone beyond infringing the privacy of individuals. Recently, a similar discussion has been going on at the Supreme Court of India. The decision is yet to come.

Search and seizure are another procedure of investigation, so why search and seizure of mobile phones is violating any fundamental rights? Mobile phones come in handy, and most of us store personal information on them. Imagine someone scrolling through your chats and posting it to the world. Sounds unsettling? Similar incidents happen even in a democratic world. So, what should be done? What laws govern queer behavior? Let us dive into .

Confiscating mobile phones and retrieving personal information is deemed to be violating the right to privacy guaranteed to individuals by the Constitution. In the case of Justice K.S. Puttaswamy & Anr. vs. Union of India & Ors., Justice D.Y. Chandrachud said the preservation of civil liberties transcended mere legalities and such implications hold profound significance. Publication of personal information conceives mental discomfort and trauma and, ultimately, a breach of privacy.

Further information derived from their mobile phones can be found incriminating against individuals, which also violates Article 20 of the constitution. Kathi Kalu described being a witness against oneself as limited to giving information in their one’s knowledge. Involuntary retrieval of information is not justiciable in the mimicry of powers installed.

The problem lies herein no law regulates the search and seizure of digital devices in this contemporary digital era. Police arbitrarily took away mobile phones, and helpless people surrendered to the situation. The Supreme Court of India is looking into the matter currently and has guided the Union to formulate guidelines for the same.

Shortcomings of Current Laws

If we do an in-depth analysis of the abovementioned provisions of these various legislations, they would have to mention the search and seizure of digital devices. So, why does the ongoing practice of raiding mobile phones exist without valid laws? Thus, the act violates the fundamental rights of the individuals. Previously, a similar discussion also took place at the apex court in the case of Ram Ramaswamy v. Union of India, where the Union government told the Supreme Court that privacy is not absolute and this act of police has reasonable nexus with proper investigation. But the court stood with civilian liberties and rights and dismissed the argument of the government stating that it would be a mockery of all the previous rulings of the apex court by going with the contention of the Union Government.

The next hearing of Foundation for Media Professionals v Union of India is going to be held in February 2024 at the Supreme Court of India. The key issues of this case are whether current regulations are inadequate for search and seizure and how without a prior judicial warrant is affecting fundamental rights. The petitioner has pointed out that digital devices are not like standard materialistic things and should be distinguished to prevent a breach of any fundamental rights. Following this petitioner also pointed out that intervention of the apex court in this matter is required to establish standard guidelines or guidelines to search and seize digital devices and to prevent police powers on such search and seizure. The 2-judgess bench of the Supreme Court has taken the matter into cognizance and currently adjourned the hearing until the next hearing. Justice Kaul asserted the need for guidelines to prevent the breach of powers by investigating agencies in this matter. The bench has directed the Union to formulate guidelines for the same.

Any act that violates the fundamental right of an individual must pass the test of due procedure established by law. We cannot completely deny that there is no requirement to search and seize digital devices and it cannot be left to be dealt with by existing laws. Justice DY Chandrachud has been vocal about emerging challenges of law in the digital age, and this is one of the many challenges that cannot be left in isolation. To secure justice, proper legislation is needed of in this hour to deal with digital devices in offenses. A high- level committee must be established for search and seizure and must distinguish information from information that is invaluable to an individual and should not be disclosed at any rate. Navigation by digital data experts is required in these crucial matters like this. A compulsory issuance of a warrant must be procured by investigating agencies to indulge in the act of their power over digital devices. The Electronic Communications Privacy Act (ECPA) of 1986 in the USA came with the object of preventing telephone communication tapping to secure privacy. Further, the USA Patriot Act enables ECPA to extend its objectives to ongoing digital challenges. This Act provides that information retrieval requires court orders and police warrants or any one of them depending upon the nature of the information. Also, this act puts the privacy of a person first, as it is an obligation to provide notice to providers to go through digital devices. It provides an array of legal obligations and duties toward individuals.

The robust mention of proportionality is a must in the age of equality and the digital age. Similarly, a similar concept of proportionality needs to be introduced to barge-in within the private cirque circle of an individual. Keeping in mind the fundamental rights of people, investigating agencies must produce judicial warrants to search and seize any digital device. But this is a temporary measure. Parliament needs to come up with effective and sapid legislation. As Theodore Roosevelt pointed out that progressive democracy it will cease to be progressive. Similarly, our ministers must produce laws that work with the needs of the society.