Why Indian Scholars Must Be Protected Against ‘Content Seizure’

A petition claims that, when seized, academic work becomes vulnerable to tampering, plagiarism, damage, destruction.

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(Photo: iStock / Altered by Shruti Mathur / The Quint)

In the last week of March 2021, the Supreme Court of India heard a plea seeking the protection of ‘academic freedom’ from raids and seizures of police and investigative agencies.

The plea, filed by five professors from eminent Indian universities, chiefly Prof Ram Ramaswamy — a former professor and researcher at JNU — requested the apex court to frame such guidelines that could foresee the treatment of material seized in a “civilised manner”.

Senior Advocate Nitya Ramakrishnan and Advocate Prassanna is representing the petitioners. The petition was filed in light of recent news events where allegations of ‘evidence planting’ have been made in the case of arrested intellectuals in the Bhima Koregaon incident. The Supreme Court has sought a reply from the Centre within four weeks in the matter.

Rona Wilson’s Arrest in Bhima Koregaon Case — And a Case for Academic Freedom

The petition discusses how such raids and seizures jeopardise the entire work done by an academic in their lifetime. It explores various aspects such as academic freedom guaranteed under Article 21 of the Indian Constitution, international regulations in this matter, and the right to privacy.

It opens up an important discussion about the respect that such an academic opus of calibre deserves.

The report referred to in the petition is by ‘The Arsenal Consulting’, a Massachusetts-based digital forensic firm.

It is specifically related to the evidence collected against Rona Wilson, an activist who has been arrested in the Bhima Koregaon case.

Wilson is one among many activists and intellectuals who has been accused in the violence that erupted between Dalits and other caste groups following the Bhima Koregaon celebrations of 2017. The report says that Wilson’s laptop was infected using a ‘malware’ and then ten incriminating letters were planted in its memory. These letters show Wilson’s conversation with a supposed ‘Maoist’ leader.

These letters were used first by the Pune police and later, by the NIA, in the chargesheet filed against Rona Wilson and Varavara Rao. The report is denied by the NIA and is being termed as an attempt to discredit the evidence that has been collected by the police in the matter.

India’s Poor Record in Academic Freedom — And an ‘Irreplaceable Loss’

In June 2020, the professors of Global Policy Institute and other universities released the Academic Freedom Index (AFI). The maximum score in the Index is 1, and India scored a deplorable 0.352 out of it.

India fared particularly low in the parameter that assessed “constitutional protection of academic freedom”.

The Supreme Court must keep such statutes and international standings of Indian academia in mind in the further hearings of the case, as it is the premier guardian of the Constitution that swears to protect the right to freedom of speech and expression through Article 19 (1) (a), guaranteeing academic liberty.

The primary argument given by the Petition is that the work and content of the scholar becomes too vulnerable after the seizure. It claims that the work of the individual is immediately subjected to a) loss; b) damage; c) destruction; d) distortion.

Apart from this, the petition speaks of the lifetime work of the academic as 'livelihood'. It says that if any sort of damage occurs to the researched work and other data collected through field work, the loss inflicted upon the individual is often "irreplaceable".

Destruction/distortion could be comparable to willingly destroying the sources of someone’s livelihood and thereby disrupting his life which defies Article 21 of the Constitution under which a person cannot be “deprived of their life and liberty”.

Right to Academic Privacy & Protection From Plagiarism

The petition further discusses a very important aspect of academic life, which is 'plagiarism'. It says when patentable work is subjected to such vulnerable environments, "it runs the risk of getting plagiarised".

If inappropriate custody of these devices lead to such cases, then it is equivalent to lending a hand in an intellectual theft.

Highlighting the lack of protocol and referring to the 'search and seizure' manual of the CBDT, released in 2007, the petition reads that "the CBDT (Central Board of Direct Taxes) manual has some references to this but neither the CBI nor the NIA appear to have any procedural protocol in this regard."

It specifically deals with those cases where financial discrepancies take place. But there is a clear difference in the nature of the content that is being searched here.

Therefore, there should be a set of specific guidelines for carrying out raids driven by varying motives. The petition also invokes guaranteed academic freedom under Article 19 (1) (g), “the right to practice a profession or occupation”.

But, the prime basis for their argument, that seeks protection for academic freedom, is their reference to the verdict in the case of Justice KS Puttaswamy v. Union of India — a landmark judgment in the jurisdiction of 'right to privacy'.

Importance of a ‘Seizure Memo’

As a matter of fact, the SC also mentioned in its judgment, that the right to privacy derived from Articles 14,15 and 21 is not ‘absolute’ — and will always be subjected to some degree of restriction. Therefore, as the matter proceeds, the petitioners will have to find peculiar references from the Constitution to make their case stronger.

Another imperative point highlighted by the petition is provision of a ‘seizure memo’. A seizure memo is a copy of the evidence or the materials that are seized by the investigative agencies in a form that cannot be “overwritten or changed” while the original stays with the accused.

It would enable the accused to provide the court with his own interpretation of the content that is being used as evidence against him. Six other guidelines too, such as obtaining "permit" from a "judicial magistrate", immediate removal of the unrelated content from the copy of the investigative agencies, etc, have been proposed by the petitioners.

Bar and Bench reported that the petitioners have also referred to Article 15 (1) (c) of the international covenant on economic, social, and cultural rights ratified by India.

According to the website, “every party must recognise the rights of everyone”. One of these rights is ‘to benefit from the protection of the moral and the material interest resulting from any scientific, literary or artistic production of which he is the author’.

Tampering With Academic Material

This reliance on international regulations may not be very helpful in further hearings as it's totally up to the government of one country to decide in what way it wants to pursue its ‘diplomatic matters’, under which these regulations find space.

These recent scenarios, especially the report published by Arsenal Consulting, has brought other investigations of the NIA and Maharashtra Police under the sphere of questioning.

Tribal rights activist Stan Swamy too, who was arrested from his residence in Ranchi by the NIA, has mentioned on multiple occasions that the evidences received against him are proxy, as they seem ‘edited’.

The report has been covered extensively by the western media and is seen in critical light. Though the NIA is denying all the findings of reports, such personal confessions as of Swamy indicate that there has been some level of tampering.

Independent Inquiry Required

The SC must commission an independent enquiry into the matter. The SC should also consider academics as strong pillars of our education system which is already in dire straits.

Such treatment of scholars from eminent universities can have highly regressive emotional effects on propagators of knowledge at the ground level too, like teachers from the rural areas and those from interior, lesser-known universities.

(Arghya Bhaskar is an independent journalist based in Jharkhand, with interests in political analysis and reporting on tribal issues, education and environment. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)