Subject: Fundamental Rights,DPSP

After alleged WhatsApp snooping cases the government has claimed that all interception in India takes place lawfully.

Try this question in the comment box:

Q.There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. Critically comment with respect to individual privacy and surveillance laws in India. (250W)

What are the laws covering surveillance in India?

Communication surveillance in India takes place primarily under two laws:

1. Telegraph Act, 1885: It deals with interception of calls.
2. Information Technology Act, 2000: It was enacted to deal with surveillance of all electronic communication, following the Supreme Court’s intervention in 1996.

[I] Telegraph Act, 1885

• Call interception: Under Section 5(2) of this law, the government can intercept calls only in certain situations.
• For sovereignty: They include 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 offense.
• Free speech restrictions: These are the same restrictions imposed on free speech under Article 19(2) of the Constitution.
• Exceptions for journalists: A provision in Section 5(2) states that even this lawful interception cannot take place against journalists.

Supreme Court intervention

• In Public Union for Civil Liberties v Union of India (1996), the Supreme Court pointed out the lack of procedural safeguards in the provisions of the Telegraph Act.
• The court noted that authorities engaging in interception were not even maintaining adequate records and logs on an interception.
• It noted that- tapping is a serious invasion of an individual’s privacy.
• The Supreme Court’s guidelines formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in 2009.
• Rule 419A states that a Secretary in the MHA can pass orders of interception in the case of the Centre, and a secretary-level officer who is in charge of the Home Department can issue such directives in States.

[II] IT Act, 2000

• Electronic surveillance: Section 69 of the IT Act and the IT (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
• Data interception: Under the IT Act, all electronic transmission of data can be intercepted.
• Section 69 of the IT Act adds another aspect that makes it broader — interception, monitoring, and decryption of digital information “for the investigation of an offense”.

Identifying the gaps

• In 2012, the Planning Commission was tasked with identifying the gaps in laws affecting privacy.
• It pointed out divergence in-laws on permitted grounds, “type of interception”, “granularity of information that can be intercepted”, the degree of assistance from service providers, and the “destruction and retention” of intercepted material.
• Although the grounds of selecting a person for surveillance and the extent of information gathering have to be recorded in writing, the wide reach of these laws has not been tested in court against the cornerstone of fundamental rights.

Only inference: Right to Privacy is not absolute

• Only in such exceptional circumstances, however, can an individual’s right to privacy be superseded to protect the national interest.
• In today’s times, when fake news and illegal activities such as cyber terrorism on the dark web are on the rise, the importance of reserving such powers to conduct surveillance cannot be undermined.

What is our concern?

• For Pegasus-like spyware to be used lawfully, the government would have to invoke both the IT Act and the Telegraph Act.
• There is no comprehensive data protection law leaving ambiguities over several laws.
• A comprehensive data protection law to address the gaps in existing frameworks for surveillance is yet to enact.

What should be the basis for surveillance?

• There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities.
• Any action without such evidence or basis would be struck down by courts as arbitrary, or invasive of one’s right to privacy.
• Any digression from the ethical and legal parameters set by law would be tantamount to a deliberate invasion of citizens’ privacy and make India a surveillance state.

Way forward

• The security of a device becomes one of the fundamental bedrock of maintaining user trust as society becomes more and more digitized.
• There is an urgent need to take up this issue seriously by constituting an independent high-level inquiry with credible members and experts that can restore confidence and conduct its proceedings transparently.

Conclusion

• We must recognize that national security starts with securing the smartphones of every single Indian by embracing technologies such as encryption rather than deploying spyware.
• This is a core part of our fundamental right to privacy.
• This intrusion by spyware is not merely an infringement of the rights of the citizens of the country but also a worrying development for India’s national security apparatus.

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Back2Basics: Right to Privacy

• Right to Privacy can be defined as:

1. a right to be let alone;
2. the right of a person to be free from any unwarranted publicity;
3. the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.

• Article 21 states that “No person shall be deprived of his life or personal liberty.
• The right to privacy is not enumerated as a Fundamental Right in the Constitution of India.
• After reading Article 21, it has been interpreted that the term ‘life’ includes all those aspects of life which go to make a man’s life meaningful, complete, and worth living.
• The scope of this right first came up for consideration in Kharak Singh’s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects.
• The 1978’s judgment in Maneka Gandhi Case established the new doctrine that the distinct fundamental rights are not carved out from each other but overlap paving way for the Right to Privacy.
• The latest interpretation included the Naz Foundation Case (2009) in which Delhi HC gave the landmark decision on consensual homosexuality.

Six years after it struck down Section 66A of the Information Technology Act, 2000, the Supreme Court earlier this month termed its continued use by law enforcement agencies of various states as “a shocking state of affairs” and sought a response from the Centre.

What did Section 66A do?

• Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
• Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
• It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
• In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

Why was the law criticized?

• The problem was with the vagueness about what is “offensive”.
• The word having a very wide connotation was open to distinctive, varied interpretations.
• It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

So, how did 66A come under the Supreme Court’s scrutiny?

• The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
• The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
• The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
• The petition was filed by Shreya Singhal, then a 21-year-old law student.

What were the grounds for the challenge?

• The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
• The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
• Most of the terms used in the section had not been specifically defined under the Act.
• The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

What did the Supreme Court decide?

• In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
• Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
• The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
• The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
• Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.