Digital Privacy and Search Warrants for Digital Devices: Section 96 BNSS and the Emerging Constitutional Framework

Underlying Case Reference: Foundation for Media Professionals & Others v. Union of India (W.P. (Crl.) No. 395/2022) and Ram Ramaswamy & Others v. Union of India (W.P. (Crl.) No. 138/2021)

Court: Supreme Court of India

 Status: Sub judice — hearing in progress as of March 2026

 Bench: CJI B.R. Gavai and Justice A.G. Masih (as of latest hearings 2026)

Key Provisions: Section 96 BNSS (search warrant), Section 185 BNSS (search without warrant), Article 21, Article 19(1)(a)

Introduction

Your smartphone contains your messages, your photographs, your bank accounts, your medical records, your location history, and your most private conversations. And until now, the law allowed police to seize it with a vaguely worded search warrant and examine its entire contents, looking for anything connected to any investigation.

Is this constitutionally acceptable?

The Supreme Court of India is currently deciding this question in the Foundation for Media Professionals v. Union of India petition, filed in 2022 and still being heard. The Court has already expressed strong views: guidelines are essential, privacy is a fundamental right, and the absence of specific rules for digital device search and seizure is a serious constitutional gap.

Why Digital Devices Are Different From Physical Evidence

A search warrant that allows the police to search your office permits them to enter a specific physical space and examine specific documents or objects. The law has always recognised that warrants must be specific: they must describe what is to be searched and what is to be seized.

But a smartphone is not a physical space. It is a repository of your entire life.

The Foundation for Media Professionals (FMP) petition before the Supreme Court put the contrast starkly:

• Journalists whose phones were seized lost access to years of confidential source communications.
• Academics whose laptops were taken had their entire research portfolios, student communications, and personal data exposed.
• In several cases, police examined data that had nothing to do with the offences under investigation.
• There were no legally prescribed standards for what investigating agencies could and could not access once they had a device in their custody.

The existing law — whether under the old CrPC or the new BNSS — does not separately address digital devices. The statutory provisions for search and seizure were written for physical objects, documents, and papers, not for devices containing gigabytes of layered personal information.

The Statutory Framework: Section 96 BNSS and Related Provisions

Section 96 BNSS (Corresponding to Section 93 CrPC): The Search Warrant

Section 96 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (corresponding to Section 93 CrPC) provides for the issuance of search warrants by courts.

Under Section 96 BNSS, a court may issue a search warrant:

1. Where a court has reason to believe that any person will not produce a document or thing as required by summons.

2. Where a document, thing, or person is not known to the court and the court is satisfied that such document or thing is in some place.

3. For a general search or inspection where the court deems it necessary.

The warrant must describe what is to be searched or seized. The officer executing the warrant must confine the search to what is specified.

The gap: Nothing in Section 96 BNSS (or the old Section 93 CrPC) specifically addresses what the investigating officer can do with the contents of a digital device once it is seized. There is no provision:

• Limiting the scope of what data can be accessed on the device
• Requiring that data unrelated to the investigation be excluded
• Mandating secure handling protocols to prevent tampering
• Requiring return of the device or deletion of irrelevant data after examination

Section 185 BNSS (Corresponding to Section 165 CrPC): Search Without Warrant

Section 185 BNSS empowers a senior police officer to conduct a search without a warrant where the officer has reason to believe that the investigation will be delayed by waiting for a warrant and that a delay would result in the destruction or concealment of evidence.

This broad power, applied to digital devices, can allow a police officer to seize and examine a smartphone entirely without prior judicial oversight.

Section 94 BNSS: Summons to Produce

Section 94 BNSS (corresponding to Section 91 CrPC) allows a court or police officer to summon any person to produce any document or thing. Applied to digital evidence, this could mean summons to produce the content of encrypted messages or cloud-stored data, raising further Article 20(3) self-incrimination questions.

The Petitions: What Is Being Asked

Foundation for Media Professionals v. Union of India (W.P.(Crl.) No. 395/2022)

Filed in October 2022, this petition by a journalists' collective made the following constitutional arguments:

• The existing legal framework under CrPC (now BNSS) does not adequately address digital devices and their unique privacy implications.
• Arbitrary seizure of journalists' phones threatens freedom of the press under Article 19(1)(a).
• The right to privacy under Article 21 (Puttaswamy, 2017) applies with full force to digital devices.
• Digital data has qualitatively different privacy implications from physical documents: it can contain entire years of personal life, professional data, and third-party information.
• Guidelines similar to those prescribed in other jurisdictions — particularly the US (Riley v. California, 2014, US Supreme Court), UK (PACE Code B), and Canada — should be adopted.

The petition proposed specific guidelines including:

• Seizure of digital devices must take place only after a prior judicial warrant.
• Emergency seizure without a warrant must be an exception, with reasons recorded.
• The search must be confined to data relevant to the specific offence under investigation.
• Data unrelated to the investigation must not be accessed.
• A chain-of-custody protocol for digital devices must be mandated.
• Seized devices must be returned or data must be deleted after investigation.
• Sources of journalists and attorney-client communications must have special protection.

Ram Ramaswamy & Others v. Union of India (W.P.(Crl.) No. 138/2021)

This petition was filed by five academics — Ram Ramaswamy, Sujata Patel, M. Madhava Prasad, Mukul Kesavan, and Deepak Malghan — who contended that investigating agencies were exercising unchecked powers in seizing digital devices containing extensive personal, professional, and academic information.

In November 2023, the Court directed that the draft guidelines proposed by the petitioners in this matter be circulated to the Central Government and all State Governments for their response.

Understand the key principles laid down in IFAT v. Union of India and their impact on gig workers, labour law, and social security in India.

The Constitutional Dimensions

Article 21 and Digital Privacy

The Puttaswamy judgment (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1) declared privacy a fundamental right under Article 21 with three facets: informational privacy, bodily privacy, and decisional privacy. Informational privacy — the right to control information about yourself — is directly engaged when investigating agencies seize smartphones and access years of personal communications.

Any restriction on this right must satisfy the triple test from Puttaswamy: legality (backed by law), legitimate aim (security, investigation of crime), and proportionality (the restriction must be no more than what is necessary).

A search warrant under Section 96 BNSS that allows unrestricted access to all data on a seized device — including data entirely unrelated to the offence — may fail the proportionality test.

Article 19(1)(a) and Freedom of the Press

The seizure of a journalist's phone threatens not only the journalist's individual privacy but the confidentiality of journalistic sources. If sources fear identification through phone records, they will stop speaking to journalists. This creates a chilling effect on newsgathering and on the public's right to be informed — a violation of Article 19(1)(a).

Article 20(3) and the Right Against Self-Incrimination

Compelled disclosure of phone passwords, encryption keys, or biometric access to unlock seized devices raises Article 20(3) questions. As established in Nandini Satpathy (1978) and Selvi v. State of Karnataka (2010), compulsion to disclose information that may incriminate the accused violates the right against self-incrimination.

Section 96 BNSS vs. Section 93 CrPC: What Changed

The BNSS, 2023 introduced one improvement: Section 532 BNSS mandates that trial proceedings including search and seizure be audio-video recorded. The BNSS also improved chain-of-custody documentation for electronic devices. However, these changes do not address the core question of what data on a seized device the police can access and what they cannot.

Why This Issue Is Critical for the Future of Indian Criminal Procedure

It Determines the Scope of Digital Privacy in Practice

The Puttaswamy judgment declared privacy a fundamental right in principle. The digital device search and seizure guidelines will determine what that right means in practice, at the most common point of government intrusion into personal life: the seizure of a smartphone during an investigation.

It Affects All Citizens, Not Just Journalists and Academics

While the petitions were filed by journalists and academics, the legal principles will apply to every citizen. Anyone whose phone is seized during any investigation — however routine — will benefit from constitutionally grounded guidelines.

It Connects to the Digital Personal Data Protection Act, 2023

The DPDP Act, 2023 (partially in force from November 2025) establishes a framework for data privacy in India. The intersection between DPDP Act protections and law enforcement access to personal data will need to be addressed as guidelines develop.

It Is Frequently Tested in 2026 Examinations

The combination of Section 96 BNSS, Article 21 (Puttaswamy), Article 19, digital evidence under the BSA, and the ongoing FMP litigation makes digital privacy and search warrants one of the most important current affairs topics for judiciary exam aspirants in 2026.

Proposed Guidelines: What Petitioners Have Suggested

From the Ram Ramaswamy petition's draft guidelines (circulated to states in November 2023), the key proposals include:

1. Prior judicial warrant is mandatory for seizure of digital devices, except in genuine emergencies.

2. Emergency seizure must be followed by judicial approval within 24 hours.

3. Scope of search must be limited to data relevant to the specific offence. "Roving" or "fishing" searches through entire device contents are impermissible.

4. Separate categories of protected data: journalistic sources, attorney-client communications, medical records, and communications with family must receive heightened protection.

5. Chain of custody protocol: all seized devices must be documented, and any access to contents must be logged.

6. Return or deletion: after investigation, the device must be returned or irrelevant data must be securely deleted.

7. Encryption/password access: Compelling the owner to provide passwords or biometric access raises Article 20(3) concerns and must be subject to judicial oversight.

Conclusion

The question of who can look at your phone, when, and for how long, is one of the most important constitutional questions of the digital age. The existing provisions of the BNSS — including Section 96 — were written for a world of physical documents and objects. Digital devices require a new framework.

The Supreme Court is building that framework. When the final guidelines come, they will draw on Article 21, the Puttaswamy privacy principles, and the comparative wisdom of courts in the US, UK, and Canada. That framework will define what digital privacy means in practice for every person in India.

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Frequently Asked Questions

Q1. What is Section 96 BNSS and how does it apply to digital devices?

Section 96 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (replacing Section 93 CrPC) provides for the issuance of search warrants by courts. It applies to the search and seizure of digital devices because smartphones and laptops are "things" that can be the subject of a warrant. However, the provision does not specifically address what data on a device can be accessed, how it must be handled, or what protections apply to personal information unrelated to the investigation.

Q2. What constitutional rights are engaged when police seize and search a digital device? Three fundamental rights are directly engaged. First, the right to privacy under Article 21 (K.S. Puttaswamy, 2017) — digital data represents the most intimate informational privacy of a person. Second, the right to freedom of expression and speech under Article 19(1)(a) — particularly for journalists and academic researchers whose sources and contacts are stored on seized devices. Third, the right against self-incrimination under Article 20(3) — when police compel the accused to provide device passwords or biometric access.

Q3. What is the Foundation for Media Professionals petition about?

 The Foundation for Media Professionals (FMP) filed W.P.(Crl.) No. 395/2022 before the Supreme Court in October 2022, seeking comprehensive guidelines regulating the search and seizure of digital devices by investigating agencies. The petition argues that existing provisions are inadequate to protect digital privacy and freedom of the press, and proposes specific guidelines based on international best practices from the US, UK, and Canada.

Q4. How does the US Supreme Court's Riley v. California (2014) case compare?

In Riley v. California, the US Supreme Court unanimously held that police need a warrant to search the contents of a smartphone seized during an arrest. The Court recognised that phones contain "the privacies of life" and cannot be treated like physical objects. This judgment, along with the UK's PACE Code B, has been cited in the Indian petitions as a model for the guidelines the Supreme Court is being asked to develop.

Q5. What improvements has the BNSS made to digital evidence handling?

Section 532 BNSS now mandates audio-video recording of trial proceedings including search and seizure processes. The BNSS has also improved chain-of-custody documentation requirements for electronic devices. However, neither the BNSS nor any current regulation addresses the core gap: what data on a seized device police can access, what they cannot, and how personal data unrelated to the investigation must be protected.