INTRODUCTION
In an era where the threat to the Nation does not come in tanks and telegrams but in hashtags and steganography, it is alarming that when Haryana-based YouTuber Jyoti Malhotra was arrested for spying for Pakistan.[1] She is not the typical spy, but allegedly used her travel blog to establish close connections with the Pakistan High Commission and intelligence operatives and shared sensitive information about the Indian Army’s movement. If this is the kind of foreign infiltration and insider-think that we are engaging in, we are in for trouble. Our social media reach, encrypted communication, and international grooming have complicated our Nation’s security. It raises the question of how competently we are detecting it, deterring it, and legislating against digital espionage.
UNDERSTANDING ESPIONAGE UNDER INDIAN LAW
Espionage has been defined classically as the activities of a secret agent for damaging, neutralizing, or destroying foreign national power by obtaining and transferring information by way of illegal means, and, generally, the information relates to the security of the state. The OSA (Official Secrets Act), 1923, governs such conduct.
- Sec 3 from OSA it is an offence if a person communicates, delivers, transmits or causes to be communicated, delivered or transmitted or attempts to communicate, deliver, transmit or causes to be communicated, delivered or transmitted the password, code or any information that is likely to assist an enemy in prejudicing the State’s safety or interests.[2]
- Section 5 of the Act penalizes wrongful possession and disclosure of official information, which has been obtained by using unauthorized means, including documents, maps, or photographs that are likely to be of use to an enemy.[3]
- Section 152 of Bharatiya Nyaya Sanhita, 2023 (BNS) criminalizes “by words, signs or otherwise making or doing any matter or thing with the intent to excite or attempt to excite secession or to excite or to attempt to excite excitement or to cause or to attempt to cause disaffection towards the sovereignty and the integrity of India”.[4] The liability of a person under this section is attracted even when they make some expression through his/her speech or social media. It provides scope for criminalising the activities of espionage through digital platforms. The laws discussed above cover not only traditional spying but also modern-day digital era spying through mobile apps, cloud data, live messages, etc.
LEGAL DIMENSIONS OF SPYING IN THE DIGITAL ERA
The 2025 arrest of Malhotra under OSA Sections 3 and 5 and BNS Section 152 shows how civilian digital actors can act as espionage contacts.
Under the OSA, S.3(2) presumes that if anyone, directly or through some other person, discloses any information, or is present with any enemy agent in a suspicious manner, it is prejudicial to the safety or interests of the state.[5] Malhotra’s encrypted chats, her foreign travel, and her alleged complicity with a Pakistani spy collectively created a pattern that led to the statutory presumption. Her digital portrayal of Pakistan in a positive light, including posting photos on Instagram with a caption such as “Ishq Lahore, may not be sinister in and of themselves, but taken together with secret communications and classified data dumps, they added up a story that was legally actionable under Indian espionage laws.
- CONSTITUTIONAL LENS: SURVEILLANCE, PRIVACY & LEGAL LIMITS
The quantum of surveillance in India can be within the limits of the Constitution. In Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court of India recognised the right to privacy as a fundamental right under Article 21. This right includes the privacy of information and is a fundamental right that prevents the State from entering into the private lives of citizens unless there is a legitimate legal reason.[6]
In the judgment of Gobind v. State of MP,[7] The Hon’ble court had already recognised the existence of limited zones of privacy in a person’s private life. Puttaswamy, however, made it obligatory that any surveillance must pass the test of legality, necessity, and proportionality. As Gautam Bhatia writes, there aren’t any clear laws on surveillance in India. The Central Monitoring System and Network traffic analysis (NTA) work without any law or judicial oversight. A lack of law is exacerbated by the blanket criminalisation in the Official Secrets Act, 1923, and Bharatiya Nyaya Sanhita, 2023, without the formulation of protocols such as warrants and review committees.
THE BORDERLESS WEB OF ESPIONAGE
The Jyoti Malhotra case is a seismic moment in espionage operations. Spies today are not necessarily spies in the shadowy world of subversion training. They could be:.
- YouTubers who make travel vlogs that capture restricted border areas.
- Instagram influencers who fall in love with someone across the border.
- Journalists or researchers who have encrypted chats with people across the globe.
They can be known or unknown to be fooled into a spy network. It becomes tough for law enforcement to track due to the use of apps like Telegram, Snapchat, and Signal for disappearing messages. In addition, the seemingly benign social media strategy of positioning a friendly and modern Pakistan is an expression of psychological soft espionage that seeks to shape Indian public opinion while covertly extracting intelligence.
Furthermore, the fact that the internet is borderless means that threatening organizations can talk to people across the globe without entering the country. While communicating information through a digital medium, the line that demarcates communication and spying becomes even thinner, the more so when a foreign adversary can instantly and indefinitely access and store any information. This form of spying is particularly dangerous because intent is so difficult to discern, especially when it is hidden behind an impenetrable wall of cultural exchanges or camouflage as an innocent travelogue. We have to become much more vigilant on cybersecurity. There is also a strong need to have proper forensic capability. This is more important in sectors where physical border security is useless.
A CALL FOR REFORM
The Official Secrets Act, 1923, is a colonial-era law intended to protect the British Raj from nationalist agitation. It uses vague expressions like “secret” and “prejudicial,” rendering obscure what constitutes protected data. Unlike other democracies, India does not have a “Top Secret” or “Confidential” kind of classification to tag information as sensitive.
Even though the Bharatiya Nyaya Sanhita (BNS) is intended to modernize the old Indian Penal Code (IPC), it still bears the same nationalist charge and doesn’t really bring in new procedures. As the legal expert Gautam Bhatia writes, in India, there is no specific law that regulates its intelligence agencies.[8] The Research and Analysis Wing (RAW) and the Intelligence Bureau (IB) function by executive orders, with no legislative oversight or defined guidelines. In Britain, for instance, there are oversight bodies and statutory institutions such as the Investigatory Powers Act 2016 that have been formed.[9]
Furthermore, the Digital Personal Data Protection Act, 2023, is a step in the right direction toward these ends.[10] But it fails to regulate surveillance and interception. And in that space, the persecution of espionage becomes all too broad and not nearly protective enough, criminalizing people while letting unchecked institutional excesses run wild.
India requires urgent legal recognition of a surveillance regime that meets national security requirements while upholding constitutional rights. This would include the enactment of legislation to codify the giving of sanction to surveillance, for the interception approvals to be subject to oversight by an independent judiciary, and for formal statutory recognition to be given to intelligence agencies with inbuilt accountability mechanisms. The repeal of the colonial-era Official Secrets Act and replacement with a new legislation, along with an autonomous Intelligence Oversight Authority, would form the basis of a constitutionally coherent and operational surveillance regime.
CONCLUSION
Espionage remains a real and threatening phenomenon. It is not diminishing, but is continually evolving. However, it has also shown that the state retains a potent capacity to interfere with privacy. The Jyoti Malhotra case has highlighted an overt and explicit need for effective espionage laws that address contemporary threats, as well as judicial supervision and open procedures with equilibrium measures. The digital era networks every citizen into a fibre of surveillance and spying. At stake in securing the state is the citizen. A new espionage law that is suited for both digital India and democratic India is not just preferable — it is essential.
Author(s) Name: Pritam Sen (CHRIST(Deemed to be University), Delhi NCR)
References:
[1] Sunil Rahar, ‘Haryana-based travel blogger arrested for spying, linked to Pakistani intelligence network’ Hindustan Times (New Delhi, 17 May 2025) <https://www.hindustantimes.com/india-news/haryanabased-travel-blogger-arrested-for-spying-linked-to-pakistani-intelligence-network-101747476024655.html> accessed 14 June 2025
[2] Official Secrets Act 1923, s 3
[3] Official Secrets Act 1923, s 5
[4] Bharatiya Nyaya Sanhita 2023, s 152
[5] Official Secrets Act 1923, s 3(2)
[6] Justice K S Puttaswamy (Retd) v Union of India (2019) 1 SCC 1
[7] Gobind v State of Madhya Pradesh (1975) 2 SCC 148
[8] Gautam Bhatia, ‘Surveillance and Privacy in India – I: Foundations’ (Indian Constitutional Law and Philosophy, 15 December 2013) <https://indconlawphil.wordpress.com/2013/12/15/surveillance-and-privacy-in-india-i-foundations/?utm_source=chatgpt.com> accessed 14 June 2025
[9] Investigatory Powers Act 2016 (UK)
[10] The Digital Personal Data Protection Act 2023
