Several instances were highlighted, including on social media, where police stopped people and checked their phones.
Published Sep 30, 2023 | 10:00 AM ⚊ Updated Sep 30, 2023 | 10:00 AM
A screengrab of an alleged video of Andhra Pradesh police checking the phones of several commuters at the state border said to be marching towards Rajamundhry Central protest on 24 September to protest against arrest of former AP CM Chandrababu Naidu. (X)
On Sunday, 24 September, videos purportedly showing the Andhra Pradesh police checking the phones — including social media apps — of several commuters at the state border were shared widely.
The videos were reportedly from the rally of IT employees headed from Hyderabad to Rajamahendravaram, where TDP leader N Chandrababu Naidu is in judicial custody in the skill development scam case.
Several people, including Naidu’s son Nara Lokesh, described the incident as an infringement of privacy.
Police personnel resorting to similar exercises have been reported over the past years — from Hyderabad in 2021 and Bengaluru in 2022.
The common feature is cops randomly stopping people on the street and checking their mobile phones for words like “weed” and “ganja” as part of their crackdown on narcotics.
Nara Lokesh took to X to vent his anger: “The deployment of a large police force to halt a car rally and the intrusion into the WhatsApp messenger app on the phones of everyday citizens raise significant concerns. Even in the most critical situations, an innocent individual’s privacy should not be violated. The situation in Andhra Pradesh is eroding democratic principles, akin to oppressive regimes like North Korea. Democracy is being demolished brick by brick.”
The deployment of a large police force to halt a car rally and the intrusion into the WhatsApp messenger app on the phones of everyday citizens raise significant concerns. Even in the most critical situations, an innocent individual's privacy should not be violated. The situation… pic.twitter.com/Fsq1yZUE0C
— Lokesh Nara (@naralokesh) September 24, 2023
However, the Vijayawada police, which had upscaled security at the borders, cited permission issues for the “preventive measure” as Section 144 of the Criminal Procedure Code (CrPC) was enforced in the area.
Legal experts said checking phones without prior intimation to the owners is illegal.
Sanketh Yenagi, a Supreme Court lawyer, explained to South First that the police or government officials cannot pressure people to reveal private/confidential information, including data stored in a mobile phone, which is private or a privacy-subject material.
The police can conduct searches only when investigating an offence after issuing a written notice under Section 91 of CrPC, or a search warrant under Section 93.
Indeed, cops have the power to carry out searches to prevent an offence from being committed, but “there are no generalised powers to stop and search people randomly”, said Yenagi.
What’s more, even an individual in police custody cannot be coerced to reveal any information related to mobile phones, such as passwords, the lawyer said.
“What they can do is, they can persuade. If the person is willing to reveal such information voluntarily, then the police can gather that information. But if the person does not want to reveal that information, the police can’t force them,” Yenagi explained.
However, CrPC Section 165 gives a police officer the general power of searching for the purposes of obtaining information into any offence where that information has to be obtained without undue delay.
However, Yenagi pointed out, “If the police think the information would be in the public’s interest, they might have to make an application before the court and wait for its direction.”
Meanwhile, even in this situation, the search cannot be arbitrary but has to follow a process that includes “recording in writing the grounds of his (police officer) belief and specifying in such writing, so far as possible, the thing for which search is to be made, or cause a search to be made”.
Vijayawada ACP KVVNV Prasad said the police were suspicious that the IT people were travelling to Rajamahendravaram to hold a mass protest.
“We already told them through the media that they did not have the permission to hold rallies or protests. Yet, they came, so we had to send them back. We stopped them and sent them back. We didn’t confiscate any of their phones or personal belongings. We checked their text messages or WhatsApp messages to see where they were going or for what reason they were there,” he told South First.
Adding that the police personnel “randomly checked” the commuters, Prasad claimed that Section 30 of the Andhra Pradesh Police Act provided them the power to conduct those searches.
“Section 144 was also imposed, so all the rallies and protests were prohibited. We had the right to check because Section 149 was enforced there, too, so assembling in Rajamundhry was a cognizable offence. Hence, we asked for their personal details and checked phones as part of the security process,” the ACP said.
More of whatsapp checking https://t.co/tnoJZWueCt
— Srinivas Kodali (@digitaldutta) September 24, 2023
However, lawyer Yenagi questioned the police’s reasoning: “Whether it be Section 144 or any other section, Article 21 says an individual has the right to privacy along with the right to life and liberty.”
Sunkara Rajendra Prasad, the president of the All India Lawyers Union (AILU), said Section 30 of the AP Police Act was different from Section 144 of the CrPC.
“The orders issued by the authorities concern not conducting meetings without police permission. The police can use Section 144 to prevent crime, but checking mobile phones is nothing but interfering with citizens’ privacy,” Prasad, a member of the AP Bar Council, told South First.
Calling the act “high-handedness of the cops”, he added, “Lately, the AP police are even not allowing people to come out of their houses claiming they would participate in protests. But participating in a protest is not an offence.”
Prasad stressed that the police needed to understand that a cognizable offence was different from people expressing dissent during a protest.
“The police have the right to prevent only the former. But the police think that expressing ourselves and participating in a protest march are also cognizable offences, which they are clearly not,” he said.
The biggest question is whether citizens can refuse to show their phones in such situations.
Lawyers South First spoke to noted that a person had the right to say “no” if the police asked them for their phone without a concrete reason.
In 2021, then DCP of South Zone Hyderabad Gajarao Bhupal (now Joint Commissioner of Police [DD], Hyderabad) reportedly said that those stopped in Hyderabad phone searches had voluntarily given their phones to the police.
However, he added that the cops would have to check what legal provisions would apply in case the citizens refuse to show their phones.
Hyderabad-based independent data and privacy researcher Srinivas Kodali, who sent a legal notice to Hyderabad City Commissioner of Police Anjani Kumar in 2021, told South First, “The people always cooperate when you put a gun to their head, right? If people don’t cooperate and you are like, ‘I will hit you or put you in jail’, then people will obviously acquiesce.”
Kodali wrote to the commissioner with the help of Delhi-based civil rights organisation Internet Freedom Foundation (IFF).
In his notice, while appealing to the police to cease unlawful surveillance activities, including the search of mobile phones of persons under duress, he said the police required a “judicial warrant” to search phones.
This is illegal and tantamount to a general warrant @hydcitypolice.
Under what law can you ?
1. Stop pedestrians without reasonable suspicion
2. Conduct a general search on their personal effects
3. Temporarily seize personal messaging devices https://t.co/cLrqNRl1gd— Internet Freedom Foundation (IFF) (@internetfreedom) October 28, 2021
Article 20(3) of the Constitution says: “No person accused of an offence shall be compelled to be a witness against himself.”
Advocate Sanketh Yenagi pointed out that citizens have the right to ask the police whether they had any government circular or a court order for the search.
“It is important to have a search warrant in such arbitrary checking. So, as long as there is an absence of a search warrant, the officer concerned cannot search anything randomly. You can also question under what provision, what offence or under what suspicion your phone is being asked for,” he said.
