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SURVEILLANCE LAWS IN INDIA

Written by Talent KAS

Related Topic in KAS Prelims Syllabus:

Indian Constitution, Political System and Governance [Paper-I]: Indian Constitution and its salient features, Public Policy and Governance

Information and Communications Technology [Paper-II]: Cyber Security concerns

Context

  • On October 2019, many publications reported that phones of several dozen Indian journalists, lawyers and human rights activists had been compromised using an invasive Israeli-developed malware called Pegasus.
  • Messaging platform WhatsApp, through which the malware was disseminated, has reported that 121 individuals were targeted in India alone.

Is Surveillance illegal in India?

  • There are legal routes to surveillance that can be conducted by the government.
  • The laws governing this are the Indian Telegraph Act, 1885, which deals with interception of calls and the Information Technology (IT) Act, 2000, which deals with interception of data.
  • Under both laws, under certain circumstances, only the government is permitted to conduct surveillance, and not private actors.
  • Hacking is prohibited under the IT Act. Section 43 and Section 66 of the IT Act cover the civil and criminal offences of data theft and hacking respectively.
  • Section 66B covers punishment for dishonestly receiving stolen computer resource or communication.

Checks and Balances

Indian Telegraph Act

  • In 1996, the Supreme Court noted that there was a lack of procedural safeguards in the Indian Telegraph Act.
  • It laid down some guidelines that were later codified into rules in 2007.
  • This included a specific rule that orders on interceptions of communication should only be issued by the Secretary in the Ministry of Home Affairs.

Information Technology (IT) Act, 2000

  • IT (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules were framed in 2009 under the IT Act.
  • The rules state that only the competent authority can issue an order for the interception, monitoring or decryption of any information generated, transmitted, received or stored in any computer resource.
  • The competent authority is the Union Home Secretary or State Secretaries in charge of the Home Departments.

Justice B.N. Srikrishna Committee

  • In July 2017, the Government of India appointed a 10-member Committee of Experts headed by Justice B.N. Srikrishna “to identify key data protection issues in India and recommend methods of addressing them”.
  • It held public hearings across India and submitted a draft data protection law in 2018 which Parliament is yet to enact.

Supreme Court verdict on Privacy

SC in a landmark decision in August, 2017 (Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Others) unanimously upheld right to privacy as a fundamental right under Articles 14, 19 and 21 of the Constitution.

Global Scenario

  • In October 2019, the U.K.-based security firm Comparitech conducted a survey of 47 countries to see where governments are failing to protect privacy or are creating surveillance states.
  • They found that only five countries had “adequate safeguards” and most countries are actively conducting surveillance on citizens and sharing information about them.
  • China and Russia featured as the top two worst offenders on the list.
  • India was featured as the third worst offender because the country’s data protection bill is yet to take effect and there isn’t a data protection authority in place.
[Source: The Hindu]

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Talent KAS