Authoritarian Surveillance laws in India and how they harm privacy of individuals in 21st century

The monsoon session of Parliament had a stormy start with a global collaborative investigative project revealing Indian involvement in spying and snooping politicians, journalists, academicians, activists, businessmen, scientists, legal community businessmen and critics of the government. The Israeli software made by the NSO Group, Pegasus, was used for surveillance of 300 Indian individuals. The wire, a digital news platform in collaboration with global media houses like the Guardian, Washington Post, Le Monde etc, and French non-profit organisation Forbidden Stories and Amnesty International shared global database of 50,000 telephone numbers.

The Guardian has said that even if numbers have surfaced in the list, it does not confirm actual surveillance by the government. Surveillance can only be confirmed after digital forensics. The NSO Group is the Israeli firm that caters to the needs of registered state governments to tackle crimes like human trafficking, narcotics, corruption, terrorism etc. The NSO has said time and again that they provide their services only to law enforcement agencies, intelligence, military. The group has refused to disclose the identity of its customer base, citing confidentiality obligations. When the government was confronted about surveillance, the government has claimed that all surveillance took place lawfully.

The government also responded by saying that 2019 claims of using Pegasus to spy on Indians citizens by WhatsApp were also false. The report had no factual basis and was denied by all parties, including Supreme Court and WhatsApp. The government believes that these claims are also similar with no concrete basis or truth. The government believes that such allegations are intentionally made to derail Indian democracy and its institutions. Surveillance laws in India are governed by The Telegraph Act of 1885 and the Information Technology Act of 2000.

The Telegraph Act deals with intercepting calls; the Information Technology Act deals with surveillance in electronic communication like communication via mobile phones, laptops, computers, tablets et cetera. India still lacks a comprehensive data protection law that will address the loopholes in existing legal provisions for surveillance. The IT Act was enacted because Supreme Court intervened in 1996 on surveillance issues.

Let’s briefly look at the Telegraph Act of 1885-

Section 5(2) of the telegraph act reads that on ‘certain occasions’ like any public emergency, events that harm public safety, et cetera the government, both central and state or an officer of the law can authorise interception and detention of telegraphs sent or received by them. If the government is satisfied that a particular person or group threatens sovereignty and integrity of India, security of the state, public order and its relation with friendly countries, the transmission or broadcast of such telegraph will be intercepted and detained.

If the government has reasonable reasons written or spoken to believe that a person or a group will commit an offence, message sent by them can be intercepted and stopped. One thing has to be kept in mind that the telegraph act is a colonial-era regulation. The reasonable restrictions mentioned under article 19(2) of the Constitution on free speech are the same as ‘certain occasions’. They are threatening sovereignty and integrity of India, security of the state, setting relations with friendly nations, order and preventing incitement to the commission of an offence.

The same section of the telegraph act also says that lawful interception of telegraph cannot be used against journalists. The Act believes that Indian journalists will not harm the security and integrity of India unless the transmission has been prohibited.

The Supreme Court intervention of 1996-

The Supreme Court intervened and pointed out the lack of safeguards in the telegraph act and laid down rules for interception of messages. The act came on Supreme Court‘s radar when tapping of politicians phone’s reports by CBI came to light.

The Supreme Court noted discrepancies like non-maintenance of records and logs on interception and set up a review committee to scrutinise authorities that allow interception. According to the court‘s judgement, tapping phones is a serious invasion of privacy, and increased interference is abuse. The court asked the government to balance the data demands of intelligence outfits with citizen’s right to privacy. Rampant interception of phone calls amounts to abuse.

These guidelines by the court were made a rule known as 419 A in the Telegraph rules in 2007. These rules were later transformed into the IT Act in 2009. Rule 419 A states that only a secretary to the Ministry of home affairs can pass interception orders. Under unavoidable circumstances, only a joint secretary to the government of India can authorise interception. Laws about privacy and technology were at a nascent state then.

Let’s have a look at the Information Technology Act of 2000-

Section 69 of the information technology act and information technology procedure for safeguards for interception monitoring and decryption of information rules 2009 was enacted to strengthen the legal framework for electronic surveillance. The IT act allowed legal surveillance of messages passed via all electronic gadgets; hence using softwares like Pegasus was legal according to the IT Act and the Telegraph Act.

The information technology rules have interception, decryption and monitoring of digital information under its ambit. This broadened scope gives it immense power to authorise legal surveillance for the investigation of an offence. The authorisation of surveillance need not fulfil the condition that there is a threat to public order and safety and that the surveillance is for the general interest.

This dispensation broadens the act and makes it vulnerable to abuse. Words of section 69 are opaque, and the telegraph act and offer no protection to those being surveilled. Surveillance is essential for intelligence purposes, combating terrorism and drug trade. Still, every surveillance, be it authorised or not, is a gross violation of the citizens’ right to privacy.

What are the gaps under existing surveillance laws?

In 2012 group of experts on privacy issues, the planning commission, and Justice AP Shah scanned the surveillance laws for loopholes. The committee pointed out that the existing laws bifurcate on type of interception, the assistance of service providers for interception, destruction and retention of intercepted information and the scope of information that can be intercepted.

Existing laws mandate the authorities to maintain a written record of personal information under surveillance. The extent of surveillance laws has not been tested against violating the fundamental rights of individuals in court.

What is the impact of surveillance laws?

Surveillance laws are a gross violation of the right to privacy and pose a threat to freedom of the press. Time and again software is like Pegasus have been used against a journalist and human right activists. World press freedom index report produced by reporters without borders has given India a low rank. The privacy and protection to free speech are tools of journalism. These laws protect a journalist against governmental reprisals.

Surveillance harms article 19 and article 21 of the Indian Constitution. The fear that someone is watching us be it physically or electronically, hampers authentic communication and expression of opinion. It hinders discussion on unorthodox ideas and criticising the government. Surveillance laws are a feature of an authoritarian regime, and India is a democracy. Surveillance laws allow an executive to direct the personal lives of citizens, which is an authoritarian rule.

Surveillance is against due process of law because the executive to the government entirely carries it out. It curtails article 32 and article 226 of the Indian constitution because it happens in secrecy. The affected person has no idea of breach of his fundamental rights. It is also against the federal nature of the Constitution as it harms the separation of power as mandated in the KS Putaswamy versus Union of India case of 2017.