According to the Webster dictionary, surveillance means keeping a watch or look
at somebody or something. Its nature is legal or not is totally depends on the
different matters or factors of state. The right of Interception is given under
Section 69 of the Information and Technology Act 2000.
The focal question associated with this section is whether it is against our
rights, i.e. Right to Freedom of Speech and Right to Privacy or not?
Section 69 of the I.T. Act 2000:
This provision authorized the Central and State governments to intercept,
monitor, or decryption of any kind of information through an electronic medium.
[i] There are seven grounds on which the government can intercept.
These are as
- National Interest,
- in the interest of sovereignty or integrity of India,
- Security of State,
- friendly relations with Foreign State,
- preventing the commission of Cognizable crime and
- for any matter of investigation.
Section 69A and 69B
These sections empower the government to slab websites with offensive content
and to monitor any computer or any data present in it respectively. It is also
stated that these provisions should not infringe on the fundamental rights
provided to Indian citizens.
Rules on Interception under IT act 2000[ii]
These rules were passed in the year 2009 to explain the suitable procedure of
interception and to maintain the relationship between section 69 and our
fundamental rights. Therefore it is obligatory in case of the Central Government
to take prior approval of the Ministry of Home Affairs and in case of state
Government approval of Secretary in charge of the Home Department. Rule 21 makes
it clear that the intercepted communication must be kept private.
Recent Trend in the Interception process
In India, the government has conferred power on a total of ten intellectual
agencies to intercept in any computer program and to monitor any data or
information present there under Section 69 of the IT Act 2000. These are as
- Intelligence Bureau
- National Investigation Agency
- Narcotics Control Bureau
- Cabinet Secretariat (RAW)
- Enforcement Directorate
- Directorate of Signal Intelligence
- Directorate of Revenue Intelligence
- Central Bureau of Investigation
- Central Board of Direct Taxes
- Commissioner of Police.
Remedies against Illegal Interception
There are two provisions that elucidate remedies that can be used by any person
provided he has been intercepted illegally. Firstly, Section 43, of the It Act,
provides penalties to be paid by the person who disrupts the computer system to
the person who is affected by it. Secondly, section 66 states that if any person
commits any offense deceitfully stated under section 43 then he can be punished
for imprisonment for a period of three years and a fine up to Rs. 5 lakhs.
Right to Privacy- not an absolute Right
In India, the Right to Privacy is not completely right and it always comes with
certain limits. Any interception made under section 69 shall pass the three-part
test which means firstly, it must be supported by law. Secondly, it has been
done for a genuine purpose, and thirdly, it must be balanced. There should be
some rational evidence for the initiation of interception. [iii]
Any kind of divergence from both the moral and lawful limitations would be
equivalent to a deliberate attack on the citizen's Right to Privacy.
It is a question of debate for a very long time. It acts as a barrier against
the freedom, liberty, and privacy of citizens. Also, it appears to be
thought-provoking to the K.S. Puttaswamy (Right to Privacy) case[iv] where the
supreme court asked the government to preserve or safeguard the informational
privacy of every citizen of India.
Suggestions and Conclusion
There is an urgent need to maintain appropriate checks and balances while using
these intercepting powers by the government. The judicial review is another
significant process to keep an eye on these powers of the government so that
they cannot misuse it also to ensure that whether there is reasonableness,
fairness, and proportionality, or not.
It Is to be noted that though powers of
interception are necessary in some cases where there is a danger to our country
just like the Mumbai terror attacks but is it at the same point infringing the
right of privacy. There must be an equilibrium between the surveillance and
Effective measures should be taken by the government to protect the national
interest of the country as well as to protect the various Fundamental Rights of
the citizens like the Right to Privacy and Freedom of Speech and Expression at
the same time. Contravention of fundamental rights of the citizens day by day
can construct the state into a surveillance state.
Submitted by: Meenakshi Gupta,
- Section 69 of the Information Technology Act, 2000
- Information Technology Act (Procedure and Safeguards for Interception,
Monitoring, and Decryption of Information) Rules, 2009.
- Paragraph 180 of the Lead Judgement and Paragraph 3(H) of the Lead
- Justice K.s. Puttaswamy vs. Union of India (2017) 10 SCC 1
5th -year student of Ideal Institute of Management and Technology (school of law) affiliated by GGSIPU.