Print Friendly, PDF & Email

The laws for surveillance in India, and the concerns over privacy

Topics Covered: Cybersecurity related issues.

The laws for surveillance in India, and the concerns over privacy:


Context:

Amidst the controversy caused by Israeli spyware Pegasus, the Indian government has claimed that all interception in India takes place lawfully.

 

What are the laws covering surveillance in India?

Communication surveillance in India takes place primarily under two laws:

  1. The Telegraph Act, 1885.
  2. The Information Technology Act, 2000.

 

What does the Telegraph Act say?

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.

 

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

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.

These guidelines formed the basis of introducing:

  1. Rule 419A in the Telegraph Rules in 2007.
  2. The rules prescribed under the IT Act in 2009.

 

Rule 419A in the Telegraph Rules in 2007:

A Secretary to the Government of India in the Ministry of Home Affairs can pass orders of interception in the case of Centre, and a secretary-level officer who is in-charge of the Home Department can issue such directives in the case of a state government.

  • In unavoidable circumstances such orders may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the state Home Secretary.

 

IT Act, 2000:

Under the IT Act, all electronic transmission of data can be intercepted.

  • Apart from the restrictions provided in Section 5(2) of the Telegraph Act and Article 19(2) of the Constitution, Section 69 the IT Act adds another aspect that makes it broader — interception, monitoring and decryption of digital information “for the investigation of an offence”.
  • Significantly, it dispenses with the condition precedent set under the Telegraph Act that requires “the occurrence of public emergency of the interest of public safety” which widens the ambit of powers under the law.

 

Need for reforms and a comprehensive law on surveillance:

A comprehensive law is needed to fill the gaps in the existing laws as higkighted by the Planning Commission. Currently, there are issues with:

  1. Permitted grounds.
  2. Rype of interception.
  3. Granularity of information that can be intercepted.
  4. The degree of assistance from service providers.
  5. The “destruction and retention” of intercepted material.

 

Conclusion:

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. Therefore, a comprehensive data protection law to address the gaps in existing frameworks for surveillance is to be enacted.

 

Insta Curious: 

Do you know what the International Covenant on Civil and Political Rights (ICCPR) says about Surveillance? Reference

 

InstaLinks:

Prelims Link:

Key Provisions of:

  1. The Telegraph Act.
  2. IT Rules.
  3. Rule 419A.
  4. Section 69A of the IT Act.

Mains Link:

Discuss the concerns associated with telephone surveillance in India.

Sources: the Hindu.