Surveillance Laws in India by Rahul Saxena @ Lexcliq

In the backdrop of Pegasus scandal, let us go through the surveillance laws in India which
primarily takes place under the Telegraph Act, 1885 and the Information Technology Act, 2000.

THE TELEGRAPH ACT, 1885

Section 5(2) of the Indian Telegraph Act, 1885 states that the government can intercept a
“message or class of messages” when it is “in the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign states or public order or for preventing
incitement to the commission of an offence”. The provision further states that news to be published by correspondents accredited to the
Central or State Government shall not be intercepted or detained, unless their transmission has
been prohibited or detained under the provision. These are the same restrictions imposed on free speech under Article 19(2) of the Constitution. Significantly, even these restrictions can be imposed only when there is a condition precedent to
the occurrence of any public emergency, or in the interest of public safety.

Public Union for Civil Liberties v Union of India (1996)

A PIL was filed in the wake of the report on “Tapping of politicians phones” by the CBI. Supreme Court pointed out lack of procedural safeguards in the provisions of the Telegraph Act and laid down certain guidelines for interceptions. The court noted that authorities engaging in interception were not even maintaining adequate records and logs on interception. Among the guidelines issued by the court were setting up a review committee that can look into authorisations made under Section 5(2) of the Telegraph Act. The Supreme Court’s guidelines formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in 2009.

Rules under Telegraph Act, 1885
The operational process and procedures for intercepting telecommunication appears in Rule 419A
of the Indian Telegraph Rules, 1951.  Rule 419A was added to the Telegraph Rules in 2007 after the verdict in the People’s Union for
Civil Liberties (PUCL) vs Union of India case in 1996, in which the Supreme Court said telephonic
conversations are covered by the right to privacy, which can be breached only if there are
established procedures. Under Rule 419A, surveillance needs the sanction of the Home Secretary at the Central or State
level, but in “unavoidable circumstance” can be cleared by a Joint Secretary or officers above, if
they have the Home Secretary’s authorisation.

BALANCING PRIVACY OF CITIZENS – SC JUDGMENTS

Public Union for Civil Liberties v Union of India (1996) – SC held that tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sold telephone conversation, in the privacy of one’s home or office without
interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day. K.S. Puttaswamy vs Union of India verdict of 2017, the Supreme Court further reiterated the need for oversight of surveillance, stating that it should be legally valid and serve a legitimate aim of the government. However, SC reinforced that means adopted should be proportional to the need for surveillance, and there should be procedures to check any abuse of surveillance. The
Court held that any law on invasion of life or personal liberty must meet the three-fold requirement of:
1. Legality, which postulates the existence of law i.e. state action must have a legislative
mandate
2. Need, defined in terms of a legitimate state aim i.e. there must be a legitimate state
purpose
3. Proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.

INFORMATION TECHNOLOGY ACT, 2000

The second legislation enabling surveillance is Section 69 of IT Act which deals with power of the
government to issue directions for interception or monitoring or decryption of any information
through any computer resource. It facilitates government “interception or monitoring or decryption of any information through any
computer resource” if it is in the interest of the “sovereignty or integrity of India, defence of India,
security of the State, friendly relations with foreign States or public order” or for preventing or
investigating any cognizable offence. Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009 . The procedure for electronic surveillance as authorised by Section 69 is detailed in the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. The directions for interception can be issued by “competent authority” which includes Secretary in the Ministry of Home Affairs (Central Government) or Secretary in charge of the Home Department (State or Union Territory).Section 66 prescribes punishment along with fine to anyone who gains unauthorised access to
computers and downloads, copies or extracts any data, or introduces or causes to be introduced any computer contaminant or computer virus. Such computer related offences shall bepunishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

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