INTRODUCTION
Privacy has always been concerned in this technical era. On one hand, where it has been simplified our life, on the other hand, it has always been questioned over Privacy. Once again the privacy concern has become a burning and sensational topic which is being discussed around the globe. Recently, an investigation by international media has revealed that more than 50,000 phone numbers across the globe have been targeted for hacking through the spyware called ‘Pegasus’, which has been developed by the Israeli firm NSO Group. Furthermore, Over 300 Verified phone numbers used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists, and others, were targeted using this malware.
It has once again called the regulations for surveillance in India. In India, Communication surveillance takes place primarily under two laws one being the Telegraph Act, 1885 and the other being the Information Technology Act, 2000. On one hand, The Telegraph Act deals with the interception of calls, while on the other hand, the IT Act deals with surveillance of all electronic communication. Although, it is also notable that India still lacks a comprehensive data Protection law to fill the gaps in the existing frameworks for surveillance.
LAWS REGULATING SURVEILLANCE IN INDIA.
Telegraph Act, 1885
Section 5 (2) of the Telegraph Act states that “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in 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, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order….”
Under this provision, the government has been authorised to intercept calls only in certain situations like when it is in 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. Moreover, an additional proviso under section 5(2) states that this lawful interception can’t take place against journalists provided that “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”
Hon’ble Supreme Court while dealing in the case of Union for Civil Liberties v. Union of India (1996), finds the absence of procedural safeguards in the provisions of the Telegraph Act. In the same judgment, the Hon’ble court also laid down certain guidelines for interceptions. The court observed that authorities who are engaged in interception were not even maintaining adequate records and logs on the interception. Furthermore, the court also states that “Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to a sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of Subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day”. The guidelines by the Hon’ble Supreme Court formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in the year 2009.
IT ACT, 2000
Furthermore, to address electronic surveillance, Section 69 of the Information Technology and Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted. Under the IT Act, all electronic data transmissions are permitted to be intercepted. So, in terms of the Pegasus spyware, it may be legal. Both the IT Act and the Telegraph Act would have to be invoked by the government. Furthermore, in addition to the restrictions imposed by Section 5(2) of the Telegraph Act and Article 19(2) of the Indian Constitution, Section 69 of the IT Act adds another dimension that broadens it — interception, monitoring, and decryption of digital information “for the investigation of an offence.”
Significantly, it does away with the condition precedent established by the Telegraph Act, which requires “the occurrence of a public emergency in the interest of public safety,” broadening the scope of powers under the law.
IMPACT OF SURVEILLANCE
There are plethoras of examples in this world where personal data are misused for many different reasons. Many people and organizations are under surveillance which is vocal and takes active participation against the criticism of the ruling political party. These things make us understand the impact of surveillance on our freedom of privacy, freedom of speech, and expression and curtail our fundamental rights. Surveillance poses threat to press freedom. The World press freedom index published by Reporters without borders ranked India 142 Out of 180 countries in the year 2021. The press needs greater liberty on privacy and speech because these two enable good reporting. They secure journalists against the threat of government reprisal against honest reporting.
A report on Privacy rights and protection was published by Forrestor, an American company in the year 2019, In India, the laws which allow the government to conduct surveillance over its citizens are very clearly undermining the laws related to the data privacy to its citizens. In the case K S Puttaswamy v. Union of India, the Hon’ble Supreme court of India held that the right to privacy is a fundamental right that comes under the domain of articles 14, 19, and 21 of the constitution but there is a lack of data protection law in India. In absence of this kind of law, it becomes just an executive order which allows the agencies to encroach on the privacy of their citizens. Also, it is very important to note that people who are under surveillance are unaware of the fact that agencies are monitoring them. In the absence of privacy laws, the security of journalists whose work criticizes the government and their safety is jeopardized. In the case of Ritesh Sinha v. State of Uttar Pradesh, the Apex court held that the right to privacy is not an absolute right, it is also subject to restrictions as with other fundamental rights. It was asserted that the right to privacy is not absolute and must bow down to compelling public interest. We still need a number of judicial pronouncements to determine how the right to privacy operates in a practical scenario. Since there is a lack of Judicial pronouncement, the court relies on the German principle “test of proportionality”. This test is used by different countries for the determination of conflicting rights. The Hon’ble supreme court has applied this principle in various cases such as Chintaman Rao v. State of Madhya Pradesh, state of Madras V. V.G. Row, etc to balance between the rights and limitations. In this principle, there are four stages to determine the balance of rights and limitations. The legitimate goal stage, suitability, necessity stage, and balancing stage that help us to strike balance between the two. But this is only effective when a particular case comes under the cognizance of court.
The Surveillance uproar the spread of Authoritarianism in the government system because the executive uses excessive power on the citizens and impacts personal lives. When it is carried out entirely by the executive curtails article 32 and article 226 of the constitution as it happens in secret and thus affected person is unable to show their breach of rights. This not only violates the ideals of due process of law but it is also against the requirement of procedural safeguards as held in the case of K.S Puttaswamy v. Union of India.
CONCLUSION AND SUGGESTIONS
To implement the ideals of due process of law and to satisfy the requirements of procedural safety and natural justice, there needs to be judicial observation. The judiciary is the competent body to determine whether specific instances of Surveillance are proportionate or not to balance the government’s objective and the rights of the individuals. The judicial investigation into the Pegasus hacking is important because the leaked database of targeted numbers includes the phone number of a sitting Supreme court Judges, which again raises the question of the Independence of the judiciary in India.
In India surveillance reform is the need of the hour, the existing protections are weak and the proposed legislation related to personal data fails to consider surveillance of the citizens. We need greater transparency in our system, governmental agencies are only accountable to the government itself. For the protection of National security, the government is bound to do smaller infringements of Fundamental rights and surveillance reform should incorporate ethics of surveillance which includes the moral values of how surveillance regulates. The government of India is in process of enacting a law for the purpose of protecting of personal data of the citizens. There is an urgent need to include privacy as a fundamental right and to provide a defining mechanism to strengthen the rights of the citizens and to provide a remedy in case of violation.