CCG STATEMENT: PERVERSION OF CRIMINAL JUSTICE

5 March 2021

 

We are a group of former civil servants of the All India and Central Services who have worked for decades with the Central and State Governments. As a group, we have no affiliation with any political party but are committed to the values and principles enshrined in the Constitution of India.

 

  1. Justice is the most fundamental of constitutional principles and criminal justice is the foundation of law and order in a civilized society. Fair and impartial investigation of crimes is at the root of criminal justice. The reports that the police and other investigative agencies may have violated constitutional guarantees and judicial pronouncements in the practices adopted in search and seizure operations, as well as the possibility that they may have been party to planting incriminating material in personal digital devices and harvesting evidence therefrom, have caused us grave concern.

 

  1. Recent reports of false evidence being planted remotely in the personal computer of one of the accused in a long-dragging sedition case are alarming. It is entirely possible that a similar situation is prevalent with regard to the evidence being used in many other UAPA cases. Such blatantly illegal practices could sound the death knell of the criminal justice system in the country. Hence the need for issuing this statement.

 

  1. There are several examples that cause deep disquiet about the handling of digital evidence, particularly evidence to be found in personal digital devices. If justice is to prevail, the awesome capabilities that present-day surveillance and spyware technology offers investigative agencies must be circumscribed by strict, meaningful and enforceable statutory safeguards.

 

  1. There are also persistent concerns about investigative agencies seizing, confiscating or searching through the entire contents of personal digital devices such as mobile phones and laptops of not only accused persons but even those called for investigation or questioning.

 

  1. We wish to state that the extant generic search and seizure provisions in the Code of Criminal Procedure do not address the issues that arise in the context of search, seizure and handling of modern day personal devices.

 

  1. It is therefore imperative that urgent legislative changes are put in place to guide the investigative agencies with due regard to and adherence to the following principles:
  2. i) Right to privacy

          The landmark judgment of the nine-judge bench of the Supreme Court in Puttaswamy’s case makes privacy a fundamental right. This judgment prohibits the investigative agencies seeking transcripts of communications-including Call recordings, WhatsApp/ Telegram/ Skype/ Messenger Chat logs and similar communication records in a wholesale manner without due regard to having to demonstrate necessity and proportionality and respect for privacy of correspondence.

  1. ii) Right against self-incrimination 

          The right against self-incrimination is expressly protected under Article 20(3) of the Constitution and has also received statutory reinforcement under Section 132 of the Evidence Act and Section 161(2) of the Criminal Procedure Code. It is applicable at the stage of investigation and applies equally to witnesses as well as to the accused. Thus, the practice of investigative agencies acquiring passwords to unlock the personal devices or accounts is violative of the right against self-incrimination. 

iii)      Protection of Privileged Communication

          Indiscriminate access to personal information, particularly personal communication, also involves the question of the right of protection of privileged communications, such as communication with one’s spouse, doctor, lawyer etc. At the time of investigation, safeguards must be in place to ensure that there is specific application of mind in respect of each unit of information searched for or seized to ascertain whether such communication has a reasonable likelihood of being privileged. 

  1. iv) Integrity of Electronic Evidence

Another important issue is the minimum standards to be adhered to in order to establish the integrity of the electronic material or device that has been taken into custody by the investigative agency.   Forensic processes adopted by the investigation agencies also must look for and rule out both pre-seizure and post-seizure tampering of such digital devices.

 

  1. v) Maintaining Transparency

  Finally, there is need for full transparency with regard to the technical capabilities that the investigative agencies have either developed and/or acquired for the purposes of either surveillance or processing of digital evidence. The capabilities of our investigative agencies and the methods and processes they employ in relation to surveillance, digital data recovery, replication, storage and destruction must be proactively disclosed. 

 

  1. We are of the considered view that whenever the prosecution relies on such electronic/digital evidence, these should be taken cognizance of only after authentication by a Statutory Expert Body set up for the purpose. The law should also provide that if the Statutory Expert Body comes to the conclusion that there has been mala fide planting or manipulation of such evidence, then it must result in prosecution of the perpetrators under the relevant provisions of Chapter XI of the Indian Penal Code.

 

  1. We, therefore, urge the Government of India to make necessary legislative changes on the above lines to prevent planting of incriminating material and false evidence in personal digital devices and lay down the overall practice and procedure of handling electronic evidence in a manner that will protect privacy, privileged communications, the right against self-incrimination and the integrity of the evidence and ensure complete transparency in order to ensure the constitutional guarantees of rendering justice to all.

SATYAMEVA JAYATE

(92 signatories, as below)

 

1.       

Anita Agnihotri

IAS (Retd.)

Former Secretary, Department of Social Justice Empowerment, GoI

2.       

Salahuddin Ahmad

IAS (Retd.)

Former Chief Secretary, Govt. of Rajasthan

3.       

K. Saleem Ali

IPS (Retd.)

Former Special Director, CBI, GoI

4.       

S.P. Ambrose

IAS (Retd.)

Former Additional Secretary, Ministry of Shipping & Transport, GoI

5.       

Anand Arni

R&AW (Retd.)

Former Special Secretary, Cabinet Secretariat, GoI

6.       

Mohinderpal Aulakh

IPS (Retd.)

Former Director General of Police (Jails), Govt. of Punjab

7.       

G. Balachandhran

IAS (Retd.)

Former Additional Chief Secretary, Govt. of West Bengal

8.       

Vappala Balachandran

IPS (Retd.)

Former Special Secretary, Cabinet Secretariat, GoI

9.       

Gopalan Balagopal

IAS (Retd.)

Former Special Secretary, Govt. of West Bengal

10.   

Chandrashekhar Balakrishnan

IAS (Retd.)

Former Secretary, Coal, GoI

11.   

T.K. Banerji

IAS (Retd.)

Former Member, Union Public Service Commission

12.   

Sharad Behar

IAS (Retd.)

Former Chief Secretary, Govt. of Madhya Pradesh

13.   

Aurobindo Behera

IAS (Retd.)

Former Member, Board of Revenue, Govt. of Odisha

14.   

Ravi Budhiraja

IAS (Retd.)

Former Chairman, Jawaharlal Nehru Port Trust, GoI

15.   

Sundar Burra

IAS (Retd.)

Former Secretary, Govt. of Maharashtra

16.   

Maneshwar Singh Chahal

IAS (Retd.)

Former Principal Secretary, Home, Govt. of Punjab

17.   

Rachel Chatterjee

IAS (Retd.)

Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh

18.   

Gurjit Singh Cheema

IAS (Retd.)

Former Financial Commissioner (Revenue), Govt. of Punjab

19.   

Anna Dani

IAS (Retd.)

Former Additional Chief Secretary, Govt. of Maharashtra

20.   

Surjit K. Das

IAS (Retd.)

Former Chief Secretary, Govt. of Uttarakhand

21.   

Vibha Puri Das

IAS (Retd.)

Former Secretary, Ministry of Tribal Affairs, GoI

22.   

P.R. Dasgupta

IAS (Retd.)

Former Chairman, Food Corporation of India, GoI

23.   

Pradeep K. Deb

IAS (Retd.)

Former Secretary, Deptt. Of Sports, GoI

24.   

Nitin Desai

IES (Retd.)

Former Secretary and Chief Economic Adviser, Ministry of Finance, GoI

25.   

M.G. Devasahayam

IAS (Retd.)

Former Secretary, Govt. of Haryana

26.   

Sushil Dubey

IFS (Retd.)

Former Ambassador to Sweden

27.   

A.S. Dulat

IPS (Retd.)

Former OSD on Kashmir, Prime Minister’s Office, GoI

28.   

K.P. Fabian

IFS (Retd.)

Former Ambassador to Italy

29.   

Prabhu Ghate

IAS (Retd.)

Former Addl. Director General, Department of Tourism, GoI

30.   

Arif Ghauri

IRS (Retd.)

Former Governance Adviser, DFID, Govt. of the United Kingdom (on deputation)

31.   

Gourisankar Ghosh

IAS (Retd.)

Former Mission Director, National Drinking Water Mission, GoI

32.   

Suresh K. Goel

IFS (Retd.)

Former Director General, Indian Council of Cultural Relations, GoI

33.   

S.K. Guha

IAS (Retd.)

Former Joint Secretary, Department of Women & Child Development, GoI

34.   

H.S. Gujral

IFoS (Retd.)

Former Principal Chief Conservator of Forests, Govt. of Punjab

35.   

Meena Gupta

IAS (Retd.)

Former Secretary, Ministry of Environment & Forests, GoI

36.   

Wajahat Habibullah

IAS (Retd.)

Former Secretary, GoI and former Chief Information Commissioner

37.   

Sajjad Hassan

IAS (Retd.)

Former Commissioner (Planning), Govt. of Manipur

38.   

Siraj Hussain

IAS (Retd.)

Former Secretary, Department of Agriculture, GoI

39.   

Najeeb Jung

IAS (Retd.)

Former Lieutenant Governor, Delhi

40.   

Ajai Kumar

IFoS (Retd.)

Former Director, Ministry of Agriculture, GoI

41.   

Sudhir Kumar

IAS (Retd.)

Former Member, Central Administrative Tribunal

42.   

Subodh Lal

IPoS (Resigned)

Former Deputy Director General, Ministry of Communications, GoI

43.   

B.B. Mahajan

IAS (Retd.)

Former Secretary, Deptt. of Food, GoI

44.   

Harsh Mander

IAS (Retd.)

Govt. of Madhya Pradesh

45.   

Amitabh Mathur

IPS (Retd.)

Former Director, Aviation Research Centre and former Special Secretary, Cabinet Secretariat, GoI

46.   

Lalit Mathur

IAS (Retd.)

Former Director General, National Institute of Rural Development, GoI

47.   

Aditi Mehta

IAS (Retd.)

Former Additional Chief Secretary, Govt. of Rajasthan

48.   

Shivshankar Menon

IFS (Retd.)

Former Foreign Secretary and former National Security Adviser

49.   

Sonalini Mirchandani

IFS (Resigned)

GoI

50.   

Sunil Mitra

IAS (Retd.)

Former Secretary, Ministry of Finance, GoI

51.   

Avinash Mohananey

IPS (Retd.)

Former Director General of Police, Govt. of Sikkim

52.   

Deb Mukharji

IFS (Retd.)

Former High Commissioner to Bangladesh and former Ambassador to Nepal

53.   

Shiv Shankar Mukherjee

IFS (Retd.)

Former High Commissioner to the United Kingdom

54.   

P.G.J. Nampoothiri

IPS (Retd.)

Former Director General of Police, Govt. of Gujarat

55.   

Surendra Nath

IAS (Retd.)

Former Member, Finance Commission, Govt. of Madhya Pradesh

56.   

P. Joy Oommen

IAS (Retd.)

Former Chief Secretary, Govt. of Chhattisgarh

57.   

Amitabha Pande

IAS (Retd.)

Former Secretary, Inter-State Council, GoI

58.   

Alok Perti

IAS (Retd.)

Former Secretary, Ministry of Coal, GoI

59.   

R. Poornalingam

IAS (Retd.)

Former Secretary, Ministry of Textiles, GoI

60.   

Rajesh Prasad

IFS (Retd.)

Former Ambassador to the Netherlands

61.   

Sharda Prasad

IAS (Retd.)

Former Director General (Employment and Training), Ministry of Labour and Employment, GoI

62.   

R.M. Premkumar

IAS (Retd.)

Former Chief Secretary, Govt. of Maharashtra

63.   

T.R. Raghunandan

IAS (Retd.)

Former Joint Secretary, Ministry of Panchayati Raj, GoI

64.   

N.K. Raghupathy

IAS (Retd.)

Former Chairman, Staff Selection Commission, GoI

65.   

V.P. Raja

IAS (Retd.)

Former Chairman, Maharashtra Electricity Regulatory Commission

66.   

C. Babu Rajeev

IAS (Retd.)

Former Secretary, GoI

67.   

M.Y. Rao

IAS (Retd.)

 

68.   

Satwant Reddy

IAS (Retd.)

Former Secretary, Chemicals and Petrochemicals, GoI

69.   

Vijaya Latha Reddy

IFS (Retd.)

Former Deputy National Security Adviser, GoI

 

70.   

Julio Ribeiro

IPS (Retd.)

Former Adviser to Governor of Punjab & former Ambassador to Romania

71.   

Aruna Roy

IAS (Resigned)

 

72.   

Manabendra N. Roy

IAS (Retd.)

Former Additional Chief Secretary, Govt. of West Bengal

73.   

A.K. Samanta

IPS (Retd.)

Former Director General of Police (Intelligence), Govt. of West Bengal

74.   

Deepak Sanan

IAS (Retd.)

Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh

75.   

G. Sankaran

IC&CES (Retd.)

Former President, Customs, Excise and Gold (Control) Appellate Tribunal 

76.   

S. Satyabhama

IAS (Retd.)

Former Chairperson, National Seeds Corporation, GoI

77.   

N.C. Saxena

IAS (Retd.)

Former Secretary, Planning Commission, GoI

78.   

Ardhendu Sen

IAS (Retd.)

Former Chief Secretary, Govt. of West Bengal

79.   

Abhijit Sengupta

IAS (Retd.)

Former Secretary, Ministry of Culture, GoI

80.   

Aftab Seth

IFS (Retd.)

Former Ambassador to Japan

81.   

Ashok Kumar Sharma

IFoS (Retd.)

Former MD, State Forest Development Corporation, Govt. of Gujarat

82.   

Ashok Kumar Sharma

IFS (Retd.)

Former Ambassador to Finland and Estonia

83.   

Navrekha Sharma

IFS (Retd.)

Former Ambassador to Indonesia

84.   

Raju Sharma

IAS (Retd.)

Former Member, Board of Revenue, Govt. of Uttar Pradesh

85.   

Ramesh Inder Singh

IAS (Retd.)

Former Chief Secretary, Govt. of Punjab and former Chief Information Commissioner, Punjab

86.   

Sujatha Singh

IFS (Retd.)

Former Foreign Secretary, GoI

87.   

Jawhar Sircar

 

IAS (Retd.)

 

Former Secretary, Ministry of Culture, GoI, & former CEO, Prasar Bharati

88.   

Thanksy Thekkekera

IAS (Retd.)

Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra

89.   

P.S.S. Thomas

IAS (Retd.)

Former Secretary General, National Human Rights Commission

90.   

Geetha Thoopal

IRAS (Retd.)

Former General Manager, Metro Railway, Kolkata

91.   

Hindal Tyabji

IAS (Retd.)

Former Chief Secretary rank, Govt. of Jammu & Kashmir

92.   

Ramani Venkatesan

IAS (Retd.)

Former Director General, YASHADA, Govt. of Maharashtra

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s