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”.