Can The Police Check Your Whatsapp Chats Without A Warrant?
Hyderabad Police recently received legal notice after the cops were seen checking people's phone for 'ganja'.
In an Orwellian state, the Big Brother is watching its citizens, all the time, through the 'telescreens'. Mobile phones, and social media, in the current scenario, roughly translate into the telescreens through which the state keeps monitoring the citizens and their activities.
There have been many incidents where the state is reported to have 'spied on' the people, particularly politicians, activists and celebrities, Pegasus case being one such example. While the high-profile case is still in the court, Hyderabad police ran into controversy for checking people's phones on the streets last week.
What Happened in Hyderabad?
The on-beat cops were seen stopping people and asking them for their phones. The cops would then open WhatsApp and put in keywords related to drugs in the 'search' bar.
Police allegedly searched for words like "ganja" in WhatsApp chats in a bid to unearth any drug peddling scams, The News Minute reported. The police later clarified that they were not 'forcing' people to show their phones and that people were 'cooperating'. However, according to law, the people can say no to such checking as it breaches the privacy of an individual.
Video shared by Siasat Daily
Independent privacy researcher Srinivas Kodali, with assistance of the Internet Freedom Foundation (IFF) sent a legal notice to Hyderabad Commissioner of Police Anjani Kumar. It termed the checking as unlawful and said the searches must be stopped immediately.
Can A Cop Check Through Your Phone Randomly?
We spoke to some legal experts who said such checking violates certain rights, like the right to privacy. In fact, the Hyderabad police ran into some trouble after a video of the cops stopping people on the roads and asking them to unlock their phones before going through the contents.
Under Article 21 of the Indian constitution, the citizens of India have a fundamental right to privacy that is 'an intrinsic part of life and liberty'. People's Union of Civil Liberties (PUCL) leader and advocate Jaya Vindhyala also said the action was against the Right to Privacy.
"It is against the Right to Privacy, which is also a fundamental right of an individual, but the police would give it a different interpretation. But they should go as per the procedure if they want to check mobile phones. They should first issue notices to them asking them to show their phones. They cannot force the people to part with their mobile phones," Vindhyala said.
A police officer cannot check anyone's phone without proper order issued by a court or in case the person is accused in some crime. Even in cases where crime is involved, police needs to seek permission before going through the phone.
"In US, the citizens have the right to sue the police if they are searched for an 'incriminating' object/material and nothing is found," Supreme Court lawyer Abhimanyu Tiwari says.
The Fourth Amendment of the American constitution mentions 'probable cause' that refers to a standard by which the police should have a reason to seek warrant for the arrest of a suspect or conduct search. The idea behind this is to prevent authorities from conducting random and arbitrary searches and to promote lawful investigation and prosecution.
Even in India, the police need to have a probable cause before conducting the search for the courts to issue a permission so that the privacy of an individual is maintained and consent sought.
But Does The Law Apply Uniformly Across India?
In conflict-affected Kashmir, youngsters and journalists have often been stopped and their phones been checked on several occasions. In 2016, when militant commander Burhan Wani was killed, several people claimed they were stopped and their phones were checked for any 'incriminating material'. The 'incriminating' material referred to images of the slain militant commander since he was popular in Kashmir and was seen as the poster boy of the new-age militancy in Valley.
While talking to Boom, Kashmir-based lawyer Habeel Iqbal mentioned one such case involving a government teacher from south Kashmir's Kulgam. "His phone was checked and the security personnel found Burhan Wani's photograph as his WhatsApp display picture. He was accused of having connections with the militants," said Iqbal. However, when no alleged connections with militants were found upon investigation, the teacher was booked for a case of stone pelting in a village in Shopian district. The chargesheet against the teacher was filed only this year, five years after the alleged incident took place.
Iqbal added that laws like AFSPA (Armed Forces Special Protesction Act) give the impunity to the security agencies to breach an individual's privacy in Kashmir. He said that people in Valley are cautious about what is in their phones. "These tactics are deployed to control the minds as well as the bodies of the people," he said.
Cops check an individual's phone under 'roving and fishing inquiry' without due permission even if the person is not under suspicion or accused in a case.
What Did The Hyderabad Cops
"We have every right to check anything, whether it is a mobile phone, iPad, laptop, pen drive or a hard disk when we find suspicious about the movement of people in the area of any crime incident," Hyderabad police commissioner Anjani Kumar said, adding that the checks were being conducted to prevent ganja peddling. Officials said that the people were cooperating largely.
"The public can deny giving their phone. However, we will then have to see what legal provisions apply. So far, we have not faced any such issue. There are no specific instructions as there has not been any issue so far," Deputy Commissioner of Police, South Zone, Gajarao Bhupal was quoted as saying by The News Minute.
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