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Data Interception by the Government by Information Technology Act, 2000

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 follows:
  1. National Interest,
  2. in the interest of sovereignty or integrity of India,
  3. Defence,
  4. Security of State,
  5. friendly relations with Foreign State,
  6. preventing the commission of Cognizable crime and
  7. 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 follow:
  1. Intelligence Bureau
  2. National Investigation Agency
  3. Narcotics Control Bureau
  4. Cabinet Secretariat (RAW)
  5. Enforcement Directorate
  6. Directorate of Signal Intelligence
  7. Directorate of Revenue Intelligence
  8. Central Bureau of Investigation
  9. Central Board of Direct Taxes
  10. 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.

Criticism
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 interception.

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.

References:
  1. Section 69 of the Information Technology Act, 2000
  2. Information Technology Act (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009.
  3. Paragraph 180 of the Lead Judgement and Paragraph 3(H) of the Lead Judgement's conclusion
  4. Justice K.s. Puttaswamy vs. Union of India (2017) 10 SCC 1
Submitted by: Meenakshi Gupta, 5th -year student of Ideal Institute of Management and Technology (school of law) affiliated by GGSIPU.

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