[Answered] An overhaul of surveillance laws is necessary to handle the present-day surveillance challenges. Discuss.

The ‘Freedom in the World’ report by Freedom House has changed India’s status from ‘free’ to ‘partly free’ in 2021. It has cited the alleged use of Pegasus on Indian citizens as one of the reasons for the downgrade. From targeting activists and journalists for civil and political purposes to targeting litigants for commercial benefits, the surveillance industry is becoming increasingly accessible.

Why overhaul of surveillance laws is necessary?

• The Information Technology Act, 2000 and the Indian Telegraph Act, 1885 concentrate surveillance powers in the hands of the executive, without any independent judicial or parliamentary oversight provisions.
• These legislations are from an era before spyware such as Pegasus were developed. Thus, do not respond to the modern-day surveillance industry.
• The Indian ‘surveillance for hire’ industry is growing. These firms offer their services to anyone who can pay, to spy on indicated targets by hacking their devices.
• The proposed data protection law does not address these concerns, instead, provides wide exemptions to the Government relating to select agencies from the application of the law.
• Neither the IT Act nor the 2009 Interception Rules, provide a grievance redressal mechanismfor person under surveillance. Due to the strict confidentiality provisions, the persons find it impossible to ascertain and prove that he/she has been under surveillance.

What can be done?

• Judicial oversight: In order to satisfy the ideal of due process of law, there needs to be an oversight from the judiciary to decide whether specific instances of surveillance are proportionate, whether alternatives are available etc.
• Strong data protection law: To protect the individual right to privacy, including protection from surveillance and unauthorized data collection by government agencies.
• Applying surveillance more objectively:In place of using terms like ‘national sovereignty’ or ‘public security’, situations attracting surveillance by the state should be made more precise and objective.
• Independent review committee:  or a ‘Privacy Commission’ comprising of retired civil servants, retired judges and civil society representatives to oversee the surveillance requests of government.
• Laws should be amended and narrowed by providing an indicative list of what constitutes abuse of surveillance, with stringent penal consequences.
• A collective decision banning the use of private spyware will be a step forward.

In the absence of the redress to those who approach authorities against unlawful surveillance, the right to privacy may soon become obsolete. An overhaul of surveillance laws is necessary to prevent the indiscriminate monitoring of people and entities by the state and private actors.