The recent discovery of a global, collaborative investigation has uncovered the potential targeted surveillance of at least 300 individuals in India. This was done using a sophisticated spyware known as Pegasus, which raised concern among international cybersecurity experts and privacy advocates. However, the Indian government has defended its actions by stating all interceptions were lawfully carried out under two main laws: the Telegraph Act, 1885 and the Information Technology Act, 2000.
Understanding the Laws behind Surveillance in India
In India, communication surveillance primarily takes place under the Telegraph Act, 1885 and the Information Technology Act, 2000. Introduced to govern the interception of calls, the Telegraph Act is used only in certain situations such as matters of sovereignty and integrity of India, public order, or preventing incitement to the commission of an offence. On the other hand, the IT Act was enacted to regulate surveillance of all electronic communication.
Details of the Telegraph Act
Section 5(2) of the Telegraph Act allows for call interception only in specific situations that involve protecting the interests of the nation, maintaining friendly relations with foreign states, preserving public order, and preventing incitement to an offence. These restrictions mirror those imposed on free speech under Article 19(2) of the Constitution. Importantly, this law requires reasons for surveillance and the scope of information gathering to be recorded in writing.
Supreme Court Stance on the Telegraph Act
The Supreme Court of India has previously pointed out the lack of procedural safeguards in the Telegraph Act in the case of Public Union for Civil Liberties v Union of India (1996). The court emphasized that while surveillance is a necessary function of any government, citizens’ right to privacy needs to be protected.
Introduction of Rule 419A
Following the Supreme Court’s critique of the Telegraph Act, Rule 419A was introduced in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in 2009. The rule allows a Secretary to the Government of India (not below the rank of a Joint Secretary) in the Ministry of Home Affairs to pass orders of interception in the case of Centre. Similar provisions exist at the state level.
Information Technology Act, 2000
The Information Technology Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 were enacted to create a legal framework for electronic surveillance. However, the scope of Section 69 the IT Act is much broader and lacks clarity, which could allow for more widespread surveillance for “the investigation of an offence”.
Issues Associated with Surveillance
There are several issues associated with surveillance including legal loopholes, violation of fundamental rights, and potential threats to a democratic society. The Centre for Internet & Society has pointed out that the gaps in laws can exacerbate surveillance and affect privacy. Surveillance systems can impact the right to privacy and freedom of speech. Excessive surveillance can also promote authoritarianism as it allows the executive to exercise disproportionate power over citizens.
Threat to Freedom of Press
The recent Pegasus revelations suggest that surveillance was conducted on many journalists, thus posing a threat to press freedom. This has added fuel to the ongoing debate on privacy issues and surveillance.
Addressing the Challenges: The Way Forward
Considering the issues raised by surveillance, there is an urgent need for reforms in the Indian surveillance regime. This should include a discussion on the ethics of surveillance and its moral implications. The upcoming Personal Data Protection (PDP) Bill, 2019 provides an opportunity for a holistic debate to ensure balance between fundamental rights and security, and the growth of the digital economy.
