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Surveillance and right to privacy: An analysis

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From data privacy scandals such as Cambridge Analytica Scandal, Google+ Scandal etc. to introduction of safeguards such as European General Data Protection Regulation (“GDPR”), Indian Data privacy regime is still lacking behind and till then the chances of misuse of such data remains high.

This short piece of writing expresses lengthy and much highlighted issues and concerns with regards to following:

Surveillance laws in India and its inferiority with foreign laws Scope of Right to privacy and increasing contradiction with surveillance laws Scope of Section 69 of Information Technology Act, 2000 and its raising concerns Emergence of Big Brother State.

Laws regulating Digital and Telephonic surveillance

Transparency of surveillance laws is India In the light of above issues and concerns, Whether India be termed as Big Brother State?

In India, the spark of hope and interest with regards to establishment of a specific codified law relating to personal data protection within the country similar to the GDPR established by European Union, since judgments have remarked Privacy as a Fundamental as well as Constitutional Right of every citizen of India.

Taking Right to Privacy a major concern, one must know the KEY facts related to Privacy in India:

The Privacy in our Society was protected in 2017 when Supreme Court of India held Right to Privacy, a Constitutional Right of every citizen of India.

We Indians neither have Personal Data Protection Laws nor do we have Data Protection Agencies.

Recent Data Breach: In March 2018, it was discovered that private information including- Names, 12-digit Aadhar number, connected informations of bank accounts of 1.1 Billion records was leaked.

India’s Aadhaar biometric database is largest in the world.

EMERGENCE OF BIG BROTHER STATE

“It was one of those pictures which are so contrived that the eyes follow you about when you move. BIG BROTHER IS WATCHING YOU…”, it was the first time when George Orwell in his novel “Nineteen Eighty-Four” coined the term “Big Brother” as stated above. This phrase turned out to be used as a political slogan. The novel by George Orwell presents a political satire having Big Brother a supreme authority of a totalitarian form of state.

Before learning the emergence and effect of Big Brother state in India, one must thoroughly understand the use and origin of this phrase. The phrase “Big Brother is Watching You” basically refers to the Government’s Surveillance of the people with all forms of electronic devices and special systems. This form of surveillance is believed to have been originated from totalitarian form of society where Big brother is the head of the regime. Surveillance of the people in the society keeps reminding them that they are under continuous observation representing a dictator’s mindset of a big brother. Such spies headed in dictatorial government forces the citizens to follow what the government wants them to do.

RIGHT TO PRIVACY

In August 2017, the Constitution of India remarked Privacy as a Fundamental Right of every citizen of India. This was guaranteed by the decision taken by the 9-judge Constitutional bench of Supreme Court of India. The then Attorney General, in the case of 2015 by Mukul Rohatgi, stated that there is no Constitutionally guaranteed Right to Privacy but the 9-judge bench at Supreme Court denying the fact held that the Constitution does guarantees the Fundamental Right to Privacy. Further, in the case of Kharak Singh and in the case of M.P Sharma, to the extent that the 2017 judgment held that Constitution of India does uphold a Right to Privacy.

There are provisions in the Constitution of India that guarantee people’s Right to Privacy; Article 21, that is Right to Life and Personal Liberty and Part III of the Constitution that is the Fundamental Rights. Therefore, this makes us clear that since then, any illegal interception of stored, received or transmission of data by an unauthorised body which leads of infringement of Right to Privacy are to be heard.

SURVEILLANCE LAWS IN INDIA

The implementation of wide range of data sharing and surveillance schemes started since the Mumbai terrorist attack, 2008. The major purpose behind the introduction of such schemes was public safety and security in order to curb crime and terrorism.

The Central Monitoring System (“CMS”) was established for Interception of communication and to provide its authorization to Law Enforcement Agencies (“LEAs”). Other than CMS, a government surveillance scheme includes Lawful Intercept and Monitoring (“LIM”) systems, CCTNS Project and NATGRID etc. The purpose behind establishment of such schemes is, firstly, mass interception of communication and secondly, to have access to keyword searches and user’s data.

All the above monitoring schemes direct readers that India is slowly but moving towards a Surveillance State or we may say Big Brother State.

LAWS REGULATING DIGITAL AND TELEPHONIC SURVEILLANCE

There are two major Acts regulating the digital and telephonic surveillance in India. These two Acts comprise of -The Information Technology Act, 2000 (IT Act) and The Indian Telegraph Act, 1885 (Telegraph Act).

SURVEILLANCE AGENCIES

In India, Central Intelligence Agencies are the surveillance actors. India, comprises of 16 different intelligence agencies which are basically established by the executive order. The loopholes in these agencies are mainly the mechanism. Research has proved, except the departments accountability there is no clearly established oversight mechanism.

For example: CBI and RAW reports to Prime Minister’s Office, The Military intelligence agencies are accountable to the Ministry of Défense etc. this makes clear that intelligence agencies don’t come under the purview of Parliament or Right to Information Act and thus, there work isn’t subject to audit by the Comptroller and Auditor General.

While dealing with interception activities, intelligence agencies in India must carry out their work in accordance with the procedures established in Telegraph Act, 1885 and Information Technology Act, 2000. Non-interception access and passive interception surveillance isn’t directed or regulated by these legislations.

TRANSPARENCY OF SURVEILLANCE LAWS

The key issue questioned on the establishment of these laws is the maintenance of secrecy and confidentiality of the intercepted information and the body directing such interception. The conclusive fact on the transparency of the surveillance laws in India is that there is no specific prohibition on the disclosure of surveillance orders issued in an aggregate form.

There is no statutory remedial or redressal mechanism to which an individual can resort in cases of illegal interception. The only thing is that an individual can do in such cases is that he can approach Court for the infringement of Right to Privacy.

Section 24 of Indian Telegraph Act, 1885 imposes the penalty of 500 rupees and imprisonment up to one year in case of unlawful interception of information.

If such unlawful interception is done by a telegraph officer or a person with official duty under telegraph office, he shall be penalized with a fine of imprisonment of up to three years or both.

Section 45 of Information Technology Act, 2000 provides that in case of unauthorized interception there is a “catch all” penalty under the Act that states that any person who contravenes any provisions under the Act or rules and regulation under the Act would be liable to pay a fine not exceeding 25,000 rupees.

CONCLUDING REMANKS

While comparing the Indian surveillance laws with the foreign laws, we learn about various loopholes in the system of orders passed. There must be a committee set up to have proper aggregate analysis of the orders passed for interception of communication along with specific reasons drafted for the approval of such orders.

Indian Law(s) makers must welcome the idea of establishment of similar Act such as GDPR established by European Union. The basic purpose behind this set up is Personal Data Protection.

India has no such Act that protects Individual’s Personal Data or a citizen’s Right to Privacy, by making developments in such laws we can increase our presence not only in laws but also in our lives else we will fear Government Surveillance for the rest of our life with the phrase, “BIG BROTHER IS WATCHING YOU”.

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Legally Speaking

MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

FACTS OF THE CASE:

The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.

COURT ANALYSIS:

The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.

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The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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