Surveillance laws in India

News: Recently, a global collaborative investigative effort has revealed that, at least 300 individuals in India, were potentially identified for targeted surveillance using sophisticated spyware called Pegasus. However, the government has claimed that all interception in India takes place lawfully.

Background:

  • A public interest litigation was filed in the wake of the report on “Tapping of politicians phones” by the CBI.
  • So, the Supreme Court pointed out lack of procedural safeguards in the provisions of the Telegraph Act and laid down certain guidelines for interceptions.
  • Communication surveillance in India takes place primarily under two laws – the Telegraph Act, 1885 and the Information Technology Act, 2000. While the Telegraph Act deals with interception of calls, the IT Act was enacted to deal with surveillance of all electronic communication.

Telegraph Act:

  • Basically, the Act deals with interception of calls. Under this law, the government can intercept calls only in certain situations — 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.
  • These are the same restrictions imposed on free speech under Article 19(2) of the Constitution. The law also states that even this lawful interception cannot take place against journalists except under few circumstances.

IT Act, 2000:

  • Section 69 of the Information Technology Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
  • However, the scope of Section 69 the IT Act is much broader and vague than the Telegraph Act as the only condition precedent for engaging electronic surveillance is for the “investigation of an offence”.
  • These provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.

Issues with the Surveillance:

  • According to the Centre for Internet & Society, the gaps in laws allow surveillance and affect privacy. For example: Ambiguity on issues like type of interception, granularity of information that can be intercepted and the degree of assistance from service providers helps in bypassing the law and aids surveillance by the state.
  • The very existence of a surveillance system impacts the right to privacy (held by the SC in K.S. Puttaswamy v. Union of India case, 2017) and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution.
  • The surveillance promotes spread of authoritarianism in the government functioning since it allows the executive to exercise a disproportionate amount of power on the citizen and impacts their personal lives.
  • Current revelations over the use of Pegasus highlights that surveillance was also conducted on many journalists. This affects freedom of press.