GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation
Surveillance Laws in India
Context: A global collaborative investigative project has discovered Israeli spyware Pegasus was used to target thousands of people across the world. In India, at least 300 people are believed to have been targeted.
The government says that, contrary to what the Pegasus report alleges, existing laws in India make it impossible for authorities to put politicians, journalists and activists under illegal surveillance.
What do Indian laws outline?
Communication surveillance in India takes place primarily under two laws
Telegraph Act deals with interception of calls
IT Act was enacted to deal with surveillance of all electronic communication,
Telegraph Act
Section 5(2) of The Indian Telegraph Act, 1885, states that the government can intercept a “message or class of messages” on certain situatinos
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.
Significantly, even these restrictions can be imposed only when there is a condition precedent — the occurrence of any public emergency, or in the interest of public safety.
The operational process and procedures for Interception
The procedures 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 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 authorisation.
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.
Information Technology Act, 2000
Section 69 of the IT Act, 2000 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 authorised by Section 69 is detailed in the 2009 rules which are broader in its scope.
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.
Conclusion
So, for a Pegasus-like spyware to be used lawfully, the government would have to invoke both the IT Act and the Telegraph Act.
