State of surveillance in India – Explained, pointwise

Introduction

A list of persons allegedly targeted by Pegasus spyware was released by a multi-organisational investigation involving news organizations, cybersecurity specialists, and Amnesty International. The list includes over 1,000 Indians, including at least 40 journalists, several members of Parliament.

While the government has denied any wrongdoing or carrying out any unauthorized surveillance, but these revelations highlight a disturbing trend of the usage of illegal surveillance net against dissidents and adversaries. A characteristic feature of a surveillance state.

What is a surveillance state?

A surveillance state is defined as a state which legally surveils all actions, locations, and friends of its citizens, in order to prevent crimes or in order to solve them faster.

Let’s have a look at the present state of surveillance laws in India, their problems, and the way forward.

Rationale behind surveillance

• Countering organized crime: Social media has become a tool for facilitating organized crime i.e. to commit and provoke extremism, money laundering, violence and crime.
• Neutralizing terrorist activities Surveillance would help in countering possible terrorist activities by offering better information on potential terror attacks.
• Curbing fake news: Fake news is a new challenge for law enforcement agencies as many lynching incidents reported in 2018 were triggered by fake news being circulated through Whatsapp and other social media sites.

Laws, regulations and rules

Following are the legal routes to surveillance that can be conducted by the government.

Telegraph act 1885: Provisions of the Telegraph Act relate to telephone conversations i.e. interception of calls.

• Under Section 5(2) of the Indian Telegraph Act, agencies at the Centre and states can intercept electronic communication “on the occurrence of any public emergency, or in the interest of the public safety”.
• The law empowers designated officials to put a device under surveillance on being 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.
• Reasons for ordering interception has to be recorded in writing by the officials concerned.

Indian Telegraph rules: Rule 419A of the Indian Telegraph Rules identify the officers who can order surveillance of messages.

• It states that a secretary to the Government of India in the ministry of home affairs can pass orders of interception.
• In the case of a state government, a secretary-level officer who is in charge of the home department can issue such directives.
• In unavoidable circumstances, such orders may be made by an officer, not below the rank of a joint secretary to the Government of India, who has been duly authorized by the Union home secretary or the state home secretary.

IT Act 2000 & IT Rules 2009: The IT Act relates to all communications undertaken using a computer resource.

• Section 69 of the IT Act 2000, together with the IT (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, authorise the agencies to issue directions for interception or monitoring or decryption of information through any computer resource, including mobile phones.
• Grounds for interception: Section 69 states that interception is permissible “in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence”.
• Note: Hacking is expressly prohibited under the IT Act.

The Indian Post Office Act, 1898: It allows the Centre and state to intercept postal articles in public emergencies or in the interest of public safety or tranquility.

Criticism of surveillance laws

Our current surveillance regime under these laws suffers from the following problems:

• A lack of oversight: A secretary of the home ministry has the authority to order the interception. The only legal safeguard against misuse is a review by a three-member review committee comprising the Cabinet secretary and two other top-level bureaucrats.
  • The surveillance target or the intermediary (such as WhatsApp) has no right to be heard by this committee, and there is no independent accountability mechanism, whether in the form of parliamentary or judicial oversight.
• A lack of transparency: The problem is made worse by a complete lack of transparency. In 2013, the central government issued 7,500-9,000 orders per month for the interception of telephones. It is not humanly possible for any individual to apply their mind to determine the legality of such interception orders and ensure that the rule of law is respected.
• Lack of safeguards: An individual will almost never know that she/he is being surveilled due to the clandestine nature of the act, hence challenging it before a court is a near-impossibility.

Impact of surveillance

• Impact on fundamental rights: The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.
  • Surveillance, when carried out entirely by the executive, curtails Articles 32 and 226 of the Constitution (empowering the Supreme Court and High Courts, respectively, to issue certain writs) as it happens in secret. Thus, the affected person is unable to show a breach of their rights.
• Hampers free exchange of information: It prevents people from reading and exchanging unorthodox, controversial, or provocative ideas.
• Creates an atmosphere of distrust: Surveillance threatens the safety of journalists, especially those whose work criticizes the government, and the personal safety of their sources is compromised. It creates an atmosphere of distrust.

Judicial position on the surveillance issue

• In Kharak Singh Vs The State of Uttar Pradesh, the Supreme Court struck down certain UP Police Regulations that allowed for home visits to “habitual criminals” or those who were likely to become habitual criminals. The Constitution bench held that such surveillance was violative of Article 21 (right to life and liberty).
• PUCL case 1996: The Supreme Court held that the right to privacy would certainly include telephonic conversation in the privacy of one’s home or office. Telephone tapping would, thus, infringe Article 21 of the Constitution of India unless it is permitted under the procedure established by law. Subsequently, the Centre codified the guidelines in 2007 under Rule 419A.
• In R Rajgopal alias RR Gopal and another Vs State of Tamil Nadu (1994), the Supreme Court held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21.
• Puttaswamy judgment: The judicial debate on the status of the right to privacy was, however, settled in August 2017 when a nine-judge bench held that the right to privacy is a fundamental right. The court added that telephone tapping and internet hacking by the State, of personal data, is another area that falls within the realm of privacy.

Suggestions/Measures

Short term

Institute an independent public inquiry to credibly investigate these allegations, and therefore repair public trust.

Long term

• Judicial oversight: In order to satisfy the ideal of due process of law, there needs to be an oversight from another branch of the government. Only the judiciary can be competent to decide whether specific instances of surveillance are proportionate, whether alternatives are available, and to balance the necessity of the government’s objectives with the rights of the impacted individuals.
• Need for a strong data protection law: There is a need for a strong data protection law that protects the individual right to privacy, including protection from surveillance and unauthorized data collection by government agencies.
• Banning the use of private spyware: A collective decision banning the use of private spyware will be a step forward.

Way forward

As surveillance spyware becomes more affordable and interception becomes more efficient, there will no longer be a need to shortlist individuals. Everyone will be potentially subject to state-sponsored mass surveillance. The only solution is immediate and far-reaching surveillance reform.