SURVEILLANCE LAWS IN INDIA – by Shubhangi Singh @lexcliq

The NSO Group which has manufactured the Pegasus Spyware used for surveillance is only sold to “Vetted Government”, that too with the permission of Defence Ministry of Israel. There is high probability that the Union Government of India has also purchased it. Because when the opposition questioned the IT minister in the Parliament, he neither refused nor accepted that the government has purchased the tool. Even, he said that “only lawful interception of electronic communication is being made by the Government”. In 2014, in a response to an RTI to SLFC, Home Ministry disclosed that on an average 7500-9000 telephone interception orders are given each month and and since then it can be safely assumed that this number must have risen.

INDIAN LAWS ON SURVEILLANCE 

There are two provisions that empower the government to intercept and monitor communication. Sec 5(2) of the Telegraph Act and Sec 69 of the Information Technology Act 2000 and subsequent rules framed within them back survellience in India. This power lies with the secretary of Ministry of Home Affairs. The oversight is with the executives instead of independent judiciary . This goes against the Principal of “Nemo judex in causa sua” which means no one should be a judge in their own cause. 

Section 5(2) of Telegraph Act, 1885 says that Government can intercept a massage or a class of massage when it is in the interest of sovereignty and integrity of the country, the security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of offences.

Rule 419A of Indian Telegraph Rule, 1951 lays that the survellienc can only be made when it gets the sanction of Home Secretary at the Central or State level. But, in unavoidable situations, it can be sanctioned by the Joint Secretary or officers above , if they have home secretary’s authorisation. This rule was added to the Telegraph Rule in 2007 after SC’s verdict in People’s Union on Civil Liberties V Union of India case. In this case SC held that conversations comes under the purview of Right to Privacy, which can only be compromised when there are established procedures only.

In  K.S Puttaswamy V Union of India, SC held that there is a need for oversight in the survelleienc, and it should serve the legitimate aim of the Government and measures should be laid to prevent the abuse of it.

Section 69 of IT Act, allows the government to intercept or decrypt or monitor any information through any computer resource, but it should be in the interest integrity and sovereignty of the nation, defence of India, security of the state, friendly relation with the foreign states or public order. It can also be used for preventing or investigating a cognizable offence. 

CONCLUSION

 If this Survellienceware is purchased by the the Union of Government than its a matter of grave concern for the democratic structure of the country.  It can enter into target’s system and the target would have no knowledge of it. It can easily be misused by the government and its authorities  to serve their personal interests and aims. For instance it is alleged that Jamal Khashoggi, a U.S based Journalist who was killed recently by the Saudi Authorities was targeted by Pegasus. The Governments are using this surveillanceware to spy the Journalists, Activists, Officials which ultimately breaches their fundamental right of Privacy and Freedom of Speech. Plus, the government of India would also be playing with the trust of the citizens. Whenever, something wrong happens with the citizen, the citizens approach government authorities, but whom are we going to trust when our own government has deployed tools to spy us ?

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