Privacy Via-a-Vis Surveillance in India
Surveillance is a necessary tool for maintaining the sovereignty, integrity, and
security of the State and it helps in the prevention and investigation of these
crimes. However, the absence of any Data Protection law overlooking the millions
of orders for surveillance, the State has untrammelled access to the private
lives of the citizens.
Until 2017, the position of law, viz. Whether the right to privacy is a
fundamental right under the Constitution of India, was unclear. Thereafter, nine
judges of the Supreme Court in the celebrated judgment of K.S. Puttuswamy Vs.
Union of India proceeded to hold that the right to privacy is a fundamental
right under Article 14, 19 and 21 of the Constitution of India and the same
should not be infringed unless the same is necessary for protecting the
sovereignty and integrity of the State.
However, despite right to privacy being declared a fundamental right of the
citizens, interceptions and monitoring can be ordered merely by issuing orders
by the concerned law enforcement agencies, with close to no vigilance over their
actions. There is no scope of any judicial scrutiny of these orders when they
are being passed, in the realm of national security and also due to the fact
that the people under surveillance, would not know that they are being
monitored, thus negating any scope of challenge to the said orders.
This leads to a situation where the powers of interception and monitoring is now
being used as per the whims and fancies of the government. The absence of a Data
Protection Legislation does not help.
K.S. Puttuswamy Vs Union Of India [Right To Privacy Judgment]
The Supreme Court of India in a landmark decision titled K.S. Puttuswamy Vs.
Union of India
[2017 (10) SCC 1] held that the right to privacy is a basic
fundamental right. It also held that the right to privacy forms an intrinsic
part of Article 21 (Right to life) and the freedom guaranteed under Part III
(Fundamental Rights) of the Constitution of India.
The Court held that the right to privacy is not independent of the other
freedoms guaranteed under part III of the Constitution of India and that it was
an element of human dignity and is, therefore, an inalienable natural right.
Another pertinent observation in the judgment was regarding the negative and
positive elements of privacy, the requirement of the State to unfairly interfere
with the privacy of individuals, and the need for a legislative framework to
restrict others from doing so.
It was held in the judgment that the requirement of reasonableness prevails
throughout Part III (fundamental rights chapter) of the Constitution of India.
The Court held that a menu of tests should be applied, depending on the rights
that may be infringed.
This in essence would mean that if the action of the
State is arbitrary, the rights guaranteed under Article 14 of the Constitution
would be infringed and such an infringement would have to pass the test of not
being violative of the said Article. Similarly, privacy invasions that implicate
freedoms guaranteed under Article 19 would fall under restrictions like public
order and obscenity. The intrusion into the life and liberty of an individual
would fall under Article 21 of the Constitution and the same would have to be
just, fair and reasonable
To summarise the findings of the judgment, it would be fair to say that the
judgment provides that there should be the existence of an appropriate Data
Protection law and the said law should seek to achieve a legitimate State aim
and the proposed action must be necessary for maintaining a democratic society.
There should also be a rational nexus between the objects and the means adopted
to achieve this, to ensure that the extent of interference is proportionate to
its needs. Lastly, it was observed that checks against the abuse of State
interference is a must.
Law Governing Surveillance In India
In India, mainly two legislations regulate digital and telephonic surveillance,
i.e. Information Technology Act, 2000 and the Indian Telegraph Act, 1885.
The Indian Telegraph Act, under Section 5 empowers the Central and State
government to intercept messages during two instances, viz.
- In the occurrence of any public emergency or the interest of
- If it is considered necessary or expedient to do so.”
(1)Apart from the above, messages may also be intercepted, in the interest of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order and for the prevention of incitement
to the commission of an offense.
Rule 419A of the Indian Telegraph Rules, incorporated in 2007 and last amended
in 2014, provides that an order for the interception can be issued by the
Secretary of the Ministry of Home Affairs in the case of Central Government and
by the State Government in-charge of Home department in case of State
Governments. The rules also provide that in unavoidable circumstances, the order
for interception may be issued by an officer, not below the rank of Joint
Secretary to the Government of India, who is authorized either by the Central or
the State Government.
It has been provided for in Rule 491A of the Indian Telegraph Rules for creation
of a review committee with the Cabinet Secretary as its Chairman, the Secretary
of the Government in charge of legal affairs and the Secretary of the Department
of Telecommunications as its members. The committee is tasked with reviewing
every order of interception, and the details of a request for interception have
to be sent to the committee within seven days of being issued.
It may, however, be noted that failure to do the same, does not in any manner,
make any officer failing to do so, to be liable. The Committee only has power to
revoke orders of interception and can direct destroying the data collected, if
found that the order of interception do not meet the requirement laid down in
the case of People's Union for Civil Liberties (PUCL) Vs. Union of India
(1) SCC 301], i.e. if the order of interception have not been issued in the
interest of public safety or on the occurrence of any public emergency.
However, the insertion of the said rule, renders itself obtuse since there
exists no mechanism for taking any action against any government officer, for
initiating interception, without having any valid grounds for doing so. It is
worthwhile to note that the fundamental right of privacy of citizens can be
legally infringed for sixty days, till the committee meets, to decide the
validity of the orders of interception. This liberty is widely misused by the
various government agencies, since, there is no adverse action taken for
wrongful interception and any order of interception is not even weighed, to be
either correct or incorrect for sixty days at least.
Similarly, the Information Technology Act under Section 69 allows the Central
and the State Government to issue directions for monitoring, interception and
decryption of any information transmitted, received or stored in a computer
resource. The power under Section 69 of the Act, expands upon the grounds upon
which interception can take place, as compared to the Telegraph Act.
The Ministry of Home Affairs vide its office order no. S.O. 6227 (E) dated
20.12.2018, issued while exercising powers under Section 69(1) of the IT Act r/w
Rule 4 of the Information Technology (Procedure and safeguards for
interceptions, monitoring, and decryption of information) Rules, 2009 authorized
10 agencies for the interception, monitoring, decryption of any information
generated, transmitted, received or stored in any computer source under the Act.
These agencies are Intelligence Bureau, Narcotics Control Bureau, Enforcement
Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence,
Central Bureau of Investigation, National Investigation Agency, RAW, Directorate
of Signal Intelligence (For Jammu and Kashmir, North East and Assam only) and
the Commissioner of Police, Delhi.
The Agencies Authorized For Interceptions And Monitoring Are Exempted From Disclosing Information Under The Right To Information Act
The agencies and authorities tasked with interception and monitoring work, are
mostly intelligence agencies and are not obligated to reply to the queries
raised regarding the extent of surveillance that is carried out by them under
Section 24 (1) of the Right to Information Act. The only exception to this rule
is that these agencies have to supply the information that is requested only if
it pertains to allegations of corruption or of human rights violations since
these requests fall under the exemption clause of Section 24 of the RTI Act.
The procedure prescribed under the various legislations, which empower the
government to intercept and monitor citizens requires the authorities to
function as a quasi-judicial authority and demands application of mind. However,
in response to a 2014 RTI query, the Central Government responded by
acknowledging that annually, the Union Home Ministry approves about 1 lac
requests for interception and some estimates place the number between
7,500-9,500 interceptions per month. Even if the lower limit of 7,500 requests
for interception is taken to be correct, it would mean that either the officers
in the Union Home ministry are applying their mind and then allowing about 250
requests for interception per day. The more believable assumption would be that
the orders for interceptions and monitoring are being permitted without even
looking into the legality or the authenticity of the requests made by the
The Ministry of Home Affairs, in response to an RTI request for providing the
number of sanctions issued by the Ministry to Central agencies permitting them
to intercept phones between 2008-2018, invoked the exemption clause under
Section 8(1)(a) of the RTI Act, to deny the said information. Pertinently, the
applicant did not seek any specific details regarding cases, individuals or file
noting. However, the request was not entertained.
Officers Passing Orders For Interception Are Under No Obligation To Protect The Privacy Of Citizens
The Home Secretaries at the Central and the State level are drawn from the
Indian Administrative Services. Any decision regarding a fit case for
interception and monitoring is therefore not made under the guidance of any
judicial officer, which has serious ramifications since the Secretaries are
under no obligation to ensure that the fundamental right to privacy of citizens
Furthermore, no adverse actions are taken against the bureaucrats
for allowing the interception and the mere steps that are taken are that the
data already collected is destroyed.
It is worthwhile to mention that since all the requests for interception and
monitoring are made citing either national security, terrorism-related
activities, smuggling of arms of currency notes, or a possible huge revenue loss
to the public exchequer, therefore, no officer would risk any liability by
disallowing a request for surveillance.
Furthermore, even under the Statutes, no
liability is imposed either on the Home Secretary of the Centre or of the State
government, for allowing interception on the request of the law enforcement
agencies, although nothing substantial may have been obtained by them, pursuant
to infringing the fundamental rights of the citizens.
Right To Privacy In The United States
Contrary to the position to India, in the United States of America, electronic
surveillance is considered a Search
under the fourth amendment, which protects
individuals from unreasonable search and seizure.
The law enforcement agencies
have to obtain a warrant in each case and have to also establish that probable
cause is justified. No such steps are needed in India. While obtaining warrants,
the law enforcement agencies in the United States are also required to provide a
specified period under which the surveillance is to be conducted and h as to
also provide in particular, the conversations which have to be intercepted. Only
in exceptional circumstances, may the government proceed without any warrant.
Position Of Courts Post The Puttuswamy Judgment
The Hon'ble High Court of Bombay in the case of Vinit Kumar Vs Central Bureau of
[2019 SCC Online Bom 3155], while determining the validity of
tapping orders issued against one of the accused persons, observed that in the
absence of any ingredients of risk to the people or interest of public safety,
orders for tapping and intercepting of phone calls, would not be justified.
The Hon'ble High Court also noted that the orders for interception, passed in that
case, would in no manner pass the test of “Principles of proportionality and
” and would therefore not be sustainable in law. The Hon'ble High
Court also directed the concerned authorities to delete the stored intercepted
message, since the same were collected in contravention of the provisions of
Section 5(2) of the Telegraph Act.
Data Protection Legislation In India
There exists no legislation which protects the data of individuals and honours
the fact that the right to privacy if a fundamental right of the citizens. It
was only in July 2017 that an expert committee was set up by the Indian
Government to draft a Data Protection Bill. This Committee released its final
report and a Date Protection Bill in July 2018.
The Bill provides for the establishment of a Data Protection Authority to
oversee the activities that involve the processing of the data that has been
collected. It also recognizes the need for protection of personal data, under
the fundamental right to privacy of citizens. Broadly, the Bill seeks to follow
the European Union General Data Protection Regulation. The Bill also provides
for setting up of an Appellate Tribunal for Data Protection, the appointment of
Data protection officers and an Adjudicating officer.
This Bill has a long way to go, before ensuring that the fundamental right to
privacy of citizens is not infringed merely by passing of office orders
directing interceptions and surveillance and to ensure that the powers vested
with government officials for ensuring the national security, integrity, and
sovereignty of India, are not misused.
- 2017 (10) SCC 1, titled J.S. Puttuswamy Vs. Union of India
- K.L.D. Nagasree Vs. Government of India [AIR 2007 AP 102]