EVER since the Modi government assumed power, it has been persecuting dissent. Latterly, its wrath fell on Amnesty International India and other NGOs whose premises were raided. Sadly, there has been little protest against such acts.
The NGO has acquired a recognised role in all democracies akin to that of the press. Both express voices independently and critically of the regime of the day. The NGO is truly the fifth estate in a democracy as vital as the other four — the legislature, the executive, the judiciary and the press.
The Criminal Procedure Code confers wide powers of search on the police. Section 165 empowers an investigating police officer to raid the premises if he has “reasonable grounds”. It is a subjective opinion.
But when the police enter the premises they observe no limits. In 1987, the Rajiv Gandhi regime, afraid of reports on the Bofors scandal, ordered a raid on the premises of the Indian Express in Mumbai, Ahmedabad, Cochin and other places on the pretext that the income tax and the customs acts had been violated.
The officials tried to censor the news copy flow in the teleprinter department. The teleprinter room — before the internet arrived — was the very hub of a newspaper office. It was from there that news was disseminated. Worse, the officials assaulted the photographers who shot their conduct removing films from cameras.
Some safeguard for privacy must be woven into the law.
Clearly, some safeguard for privacy must be woven into the law. The press does not claim to be above the law; but the law must protect it in the discharge of its duties. The privacy of sources needs to be protected from random searches.
One case illustrates the problem. In the Zurcher vs Stanford Daily, the university paper had evidence of a crime and threatened openly to destroy it if it knew that the police would come for it. Four police officers entered its offices to search for photographs of a clash between the police and demonstrators at the university hospitals.
On May 31, 1978, the US supreme court ruled against the daily. Earlier in 1965, it had ruled in Stanford vs Texas that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. Hence the need for checks.
It “invalidated a warrant authorising the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts.”
“Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field,” said the judgement
In 1978, the court spoke of ‘neutral magistrates’. Does the species flourish in India? It held against “rummaging at large in newspaper files or to intrude into or to deter normal editorial and publication decisions”.
This logic applies also to NGOs surely. Concurring Justice Powell said: “This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile necessarily would be reasonable in supporting the search of a newspaper office.” Therefore the press does need special protection.
Justice Potter Stewart dissented: “Policemen occupying a newsroom and searching it thoroughly for what may be an extended period of time will inevitably interrupt its normal operations, and thus impair or even temporarily prevent the processes of news-gathering, writing, editing, and publishing.
“…A search warrant allows police officers to ransack the files of a newspaper, reading each and every document until they have found the one named in the warrant, while a subpoena would permit the newspaper itself to produce only the specific documents requested. A search, unlike a subpoena, will therefore lead to the needless exposure of confidential information completely unrelated to the purpose of the investigation.”
There was an uproar. ‘Politically appointed’ magistrates are no safeguard. News reporters preserve source material unused in their reports. “The compelled production of a reporter’s source materials can constitute a significant intrusion into the news-gathering and editorial process,” a judge point out, “Like the compelled disclosure of confidential sources, it may substantially undercut the public policy favouring the free flow of information to the public that is the foundation for the (First Amendment) privilege.”
In 1980 the US Congress passed the Privacy Protection Act. India needs such a law. It must substitute a sessions judge, if not, indeed, a high court judge, as the authority for a specific search warrant. The warrant must not only specify what is wanted but lay down a ban on a rummaging search. An official which violates the ban must be ordered personally to pay the fine.
The writer is an author and a lawyer.
Published in Dawn, December 7th, 2019