Thread by @smitharnair

🧵#Zubair case: Do Police Have The Right To Unfettered Access To Your Phones, Laptops?

Power of arrest is so casually exercised in India today. Much leeway is given to police without parallel protections to accused: Senior Adv Rebecca John @scroll_in

The process has been reversed. You haven't first sought material that may be relevant for investigation. Instead you arrest him. Its an admission that you have no case against him. After arresting you're saying let's recover laptop to determine if any other offense is committed

On Zubair's electronic devices being seized: I'd have imagined that the fundamental question a magistrate would ask in such a case is-- here is the tweet, the man is not denying the tweet, why did you need the device? Clearly there is no nexus

Rebecca John: Law on digital evidence giving unfettered access to investigating agencies to every part of your life is vague and ambiguous-
We don’t have statutory provisions which control the right of police to seize electronic data.

Rebecca John: Time has come for judicial guidelines as to circumstances under which these electronic seizures can be made. Can you compel a person to give passcode of phone. Does that nt amount to self incrimination. Post privacy judgement, imp to draw boundaries of this power

Rebecca John: Ordeal for rape survivors. Police take their phones, allow accused cloned copy- exposing her to most vicious cross examination in court, over incidents, relationships that have no bearing on the facts of this case,which relate to years before the crime was committed

Rebecca John: Magistrates are the first line of defence as far as accused person is concerned. He is produced before the magistrate, he expects the magistrate to protect his rights. Every magistrate must be mindful of abuse, must insist on certain basic safeguards.

In the iconic dissent of Justice HR Khanna in ADM Jabalpur case, he said -the defence of personal liberty is the defence of procedure. Procedural law is of utmost importance to ensure the rights of citizens. That's all we seek from our subordinate judiciary-Rebecca John

On Hyd police stop and search: I'd imagine this is just the kind of case, where a court should take suo moto notice and ask the police, under which provision of law have you got the power to randomly stop motorists and ask them to submit their mobile phones to you for inspection

All of this comes because I think we have steadily ignored the price that individuals pay when we don’t adhere to procedure. At some point the courts have to get proactive and insist that the law isn’t just for police agencies, the law is for the citizen: Rebecca John

On Bhima Koregaon and alleged planting of evidence:
When you have extraordinary evidence which suggests that there has been tampering, the it is the duty of constitutional courts to step in

Extraordinary powers are available to constitutional courts