LAW RELATING TO SURVEILLANCE BY STATE: A RIGHT TO PRIVACY PERSPECTIVE

INTRODUCTION

The issue of surveillance is re-triggered in India at the end of October 2021, when the news was knocked on the doors of Indian citizens’ in the form of a volcanic eruption reporting a fact that about 300 individuals were targeted by the Israeli developed spyware called Pegasus. It was also reported that malware was disseminated through WhatsApp. For this wrongful conduct legal action was initiated by WhatsApp and its parent company Facebook in a California Court of U.S. On the other hand in India, social activists and opposition leaders targeted the central government over the gross violation of the privacy right a recently declared a basic human right by the highest court of India. Against this backdrop, it is inevitable to study the law relating to surveillance in India and its nature and scope, particularly from the perspective of privacy right which was declared by the court to be a part and parcel of life and liberty right as envisaged in the basic document related to the governance of the country 

MEANING OF SURVEILLANCE

Surveillance indicates minute observance of an individual or community, particularly charged with or alleged as an offender. In other words, it is a system through which activities were monitored. In a better manner, it can be explained as an act of the government agencies to conduct systematic screening of information and behavior of individuals and make a record of it. It can be also defined as the careful watching of a person or place, especially by the police or army, because of a crime that has happened or is expected. The analysis of the concept of surveillance makes it clear that without the involvement of a state or its machinery surveillance is not possible.  

LEGALITY OF SURVEILLANCE OF INDIA

Indian constitution adopted the principle of the Rule of Law. It was also held in many cases that it is the basic structure of the Constitution of India. This principle advocates for the legal sanction for every government action and inaction. Therefore, the first question is whether surveillance by state or its agencies is allowed by law or if not allowed whether it is expressly prohibited by law. Whatever is not prohibited by law is permitted in India. This was endorsed by the Apex Court of the country, legislative framework relied upon by the government to counter opposition outcry and to justify surveillance by state within the legal sphere can be discussed as under.

INDIAN TELEGRAPH ACT, 1885

This Act was enacted to regulate digital communication, wired and wireless telegraphy, telephones, and communication through radio. Further, this legislation also conferred exclusive authority on Government to establish, operate, license, maintain, and oversight wired and wireless communication in the territory of India. Section 5 of this Act, enables both the governments and a person in authority on whom powers are conferred by the respective governments to intercept the communication that too, in the event of an outbreak of emergency situation or security of the general public requires such an action. After going through the text of Section 5 of the Act it becomes certain that the scope for interception of communication is very narrow and a detailed procedure is required to be followed while intercepting the communication of any person. This Act was challenged by an NGO, Peoples Union for Civil Liberties. While upholding the challenge on the ground of inconsistency with the basic right of free speech and right relating to privacy, courts laid down certain guidelines. To implement the guidelines of the Apex Court Central Government framed the Indian Telegraph Rules,2009 which were amended in 2014, these rules inter alia provided for the issuance of an order of interception by the Secretary of the Ministry of Home Affairs in relation to Union of India and government of concern State by the person responsible for the said department. The rules also made provision for a review committee to scrutinize the order and requests made for interception. The review committee must have received such a request by the end of seven days from the issue of the order of interception. Such an order cannot be executed unless a green signal is given by the review committee. However, the order of the committee is only recommendatory in nature as no penal consequences are provided for the erring officer who intercepts the calls without the nod of the committee. The rule simply says that in such a case the committee can revoke the order of interception and destroy the data obtained by the concerned officer without taking permission from the committee.

INFORMATION TECHNOLOGY ACT, 2000

Information technology is established and expanded in India as a knowledge-based industry but at the same time, it also created means for illegal activities with anonymity at the behest of individual wrongdoers, organizations, and even governments also. Taking this lurking danger into account parliament of India enacted this Act, which makes lawful all activities conducted through electronic means, online communications, or electronic commerce dealings. It is desirable to discuss relevant provisions of this Act authorizing the government to do such kind of surveillance. Section 69  expressly authorizes the Government established at the central level or Government at the State level or officer authorized by respective governments on this behalf by written reasoned order to instruct any government entity to decrypt, monitor, or intercept any information stored, transmitted, generated or received in any resource of a computer by taking into account the following factors 

  • Unity Integrity and Independence of the Nation.
  • External aggregation on the nation
  • Internal Safety and security of the Country
  • Cordial relations with other nations
  • Maintenance of internal law and order or preventive actions and investigation of certain offenses. 

Further Clause 2 of Section 69 mandated the government to prescribe detailed procedures by framing rules on this behalf. Accordingly, Central Government framed rules on 27th October 2009.

INFORMATION TECHNOLOGY (PROCEDURE AND SAFEGUARDS FOR INTERCEPTION, MONITORING, AND DECRYPTION OF INFORMATION) RULES, 2009

These rules mandate seeking instructions from the Ministry of Home affairs, particularly from, the Secretary of Home Department or Joint Secretary and delegation of such authority to any agency by the central government. By invoking this rule central government in the year 2018 authorized ten agencies the central government to conduct surveillance. These agencies are Intelligence Bureau, CBI, NIA, RAW, DSI, NCB, ED, CBDT, DRI, and Delhi Police Commissioner. This step of the government was challenged before the Supreme Court and a decision over this is yet to come. a procedural requirement, these rules provide for detailed procedures and safeguards in order to intercept information such as recording reasons or grounds of interception in writing and setting a time limit for an initial period of 60 days and of maximum 180 days for the direction of interception. It also provides for the destruction of information obtained through such interception within six months.

RIGHT TO PRIVACY VIS-A-VIS SURVEILLANCE

Indian Constitution confers certain basic rights on its citizens and certain on non-citizens also. Article 21 among those rights is of utmost importance as it directly affects the life and personal liberty of persons. In the year 2012, the government was assigned the task of finding the gaps in laws affecting privacy. This committee was headed by Justice A.P. Shah, who recommended several measures to carry out surveillance by protecting the right to privacy of individuals. 

In Peoples Union for Civil Liberties V. Union of India Court held that phone tapping without procedural safeguards set out in law is a direct invasion of privacy rights. While balancing the state right and individuals’ rights the court issued certain guidelines to be implemented in order to protect the privacy right and the obligation of the state to establish peace and tranquility. In Retd. Justice Puttuswamy V. Union of India court expressly declared privacy is a core of human life and therefore a part of life within the meaning of Article 21. Court also emphasized on, Right to privacy could be a major hurdle in the state’s ability to conduct surveillance in India. By delivering this judgment court overruled its earlier decisions wherein the court was inclined to the opinion that, privacy right is a part of life and liberty under Article 21 and therefore a fundamental right.

CONCLUSION

After considering the laws, decisions, and reports of the expert committees appointed to study the nature and extent of the right to privacy, it can be safely concluded that the state-sponsored surveillance in India is having very limited scope as the procedure laid down by the legislation and rules framed there under are very comprehensive. They left minimum scope for the states to invade the privacy of the individuals. But of course, if the state follows that procedure, otherwise if the state acts arbitrarily and contrary to law then not only the privacy of persons but even the right to life will also be at a stake and depend upon the sweet will of the state.

Author(s) Name: Dr. Pandhare Balasaheb Dashrath