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3) Section 69 of the IT Act allows for disproportionate state action, and is antithetical to the right to privacy. Critically analyze. (250 words)

Topic – Indian polity : issues

3) Section 69 of the IT Act allows for disproportionate state action, and is antithetical to the right to privacy. Critically analyze. (250 words)

The hindu

Why this question

The article examines section 69 of the IT Act and why it might be antithetical to privacy. The issue gains significance because of the recent notification of the government allowing certain central agencies to monitor online content and hence this issue needs to be discussed in detail.

Key demand of the question

The question expects us to bring out what section 69 of IT Act entails. It expects us to highlight that the recent notification has been brought out usi h section 69 of the IT act. We need to examine the implications of the said section on privacy and discuss the way forward.

Directive word

Critically analyze – When asked to analyze, you  have to examine methodically the structure or nature of the topic by separating it into component parts and present them as a whole in a summary. When ‘critically’ is suffixed or prefixed to a directive, all you need to do is look at the good and bad of something and give a fair judgement.

Structure of the answer

Introduction – Explain that The Union Home Secretary, last week, promulgated an order authorising 10 Central agencies to monitor, intercept and decrypt information which is transmitted, generated, stored in or received by any computer. Highlight that The notification was reportedly issued in pursuance of powers stipulated in Section 69 of the Information Technology Act, 2000, which enables government agencies to intercept personal information of citizens under certain conditions.

Body

  • Explain in detail about section 69 of the IT Act. Discuss the reason why the said section is considered as antithetical to privacy.
    • In order for a restriction such as Section 69 allowing for interception of personal data on a computer to be constitutionally valid, it would not only have to pursue a legitimate state aim (say, for instance, national security) but also be proportionate, so that there is a rational nexus between the means adopted (i.e., authorisation of interception) and the aim.
    • Section 69 of the IT Act is so broadly worded that it could enable mass surveillance to achieve relatively far less serious aims such as preventing the incitement of the commission of a cognisable offence
    • Under Section 69, the government can intercept personal information under any of the following conditions: when it is necessary in the interest of Indian sovereignty or integrity; security of the state; friendly relations with foreign states; public order; and for preventing incitement to the commission of any cognisable offence related to these. While the first four feature in Article 19(2) of the Constitution, the last, namely preventing incitement to commission of cognisable offences, is not an enumerated restriction. A restriction in the form of authorised surveillance would not be justified unless it is in order to maintain public order, a reasonable restriction under Article 19(2). Etc
  • Examine why such an order might be necessary in light of genuine state interests.

Conclusion – Give a fair and balanced conclusion and discuss way forward.