SURVEILLANCE LAWS AND RIGHT TO PRIVACY

With surveillance being used increasingly by governments globally to spy on the opposition and political dissidents in the garb of controlling terror-related activities, the dangers of privacy violations of individual citizens have become palpable. Currently there is no legislation for data protection. Section 69 of the 2000 IT Act allows any government, Central or State, to direct any of its agencies to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer source. The government’s surveillance rights are not deemed to be absolute as it can only do so after approval by the Home Secretary.

The Personal Data Protection Bill was introduced in Parliament in 2006. It has been redrafted as the Personal Data Protection Bill, 2018, which recognizes the right to privacy of individuals as a fundamental right and the need to protect personal data as an essential facet of informational privacy This assumes significance after the landmark nine-judge Supreme Court bench judgment in 2017 declaring privacy as a fundamental right, but it is not a comprehensive Bill, cybersecurity experts say.

The Free Software Movement of India (FSMI), a national coalition of various regional and sectoral software movements in India, has condemned “the targeted surveillance of activists, lawyers and journalists with the Israeli Pegasus spyware”. As per the Telegraph Act, the Supreme Court’s judgment in the PUCL case and the current legal framework, surveillance of an individual can be done only on the basis of an order signed by the Home Secretary. Even this surveillance covers only the interception of messages and does not permit any hacking of people’s devices.

According to, Pawan Duggal, a Supreme Court lawyer and chairman of the International Commission on Cyber Security Law, the arbitrary surveillance was a wake-up call for the government, more so after the historic K.S. Puttaswamy judgment , where the right to privacy was upheld as a fundamental right. 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 operational process and procedures for it appear 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 that 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 authorization. 

In the 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. The court also said the means adopted should be proportional to the need for surveillance, and there should be procedures to check any abuse of surveillance.

The second legislation enabling surveillance is Section 69 of the Information Technology Act, 2000, which deals with electronic surveillance. 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. 

The procedure for electronic surveillance as authorized by Section 69 is detailed in the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

These rules, according to Apar Gupta, lawyer and executive director of the Internet Freedom Foundation, are very broad and allow even the redirection of traffic to false websites or the planting of any device to acquire any information. 

Section 66 prescribes punishment to anyone who gains unauthorized access to computers and “downloads, copies or extracts any data”, or “introduces or causes to be introduced any computer contaminant or computer virus,” as laid down in Section 43.