Surveillance means monitoring, collecting or intercepting data of the
individual by a third person. With advancement in technology and increased
number of telecommunication and internet users in India we are more prone to
share our personal and confidential data via the aforementioned ways of
communication but we do not know that a third person or an interceptor can
collect and monitor our data.
For avoiding this situation India have previously enacted legislations on
surveillance of a call or website. Surveillance in its strictest sense can also
be proved very helpful in monitoring national security and criminal offences, in
context of this there are certain authorities and departments which are allowed
to monitor and intercept the data of another person but also the reasons should
be substantially similar to that provided in the clauses of the legislations.
In India surveillance issues are monitored by two legislations at present, the
first is The Telegraph Act, 1885 which majorly deals with interception of calls
and prohibits third person from interception of calls and also provides
authority and justified reasons for doing so.
Another legislation relating to surveillance is Information Technology, 2000
also known as the IT act of 2000. This legislation deals with surveillance of
electronic communication and provides necessary regulations and guidelines
regarding to it.
Surveillance is being talk of the town due to contemporary issues like Peagasus
which allegedly traced data of various high profile Indian individuals. This has
made government to rethink on its policies regarding surveillance and to avoid
such happenings in future. Illegal surveillance is also a very serious threat to
the privacy of the individual which is per Supreme court's observation a
fundamental right of an Indian citizen.
Threat to privacy is implied threat to the fundamental rights of the netizens
provided in the Constitution of India. In furtherance to the same central
government is also in process of making a more regulatory and redefined
legislation which deal with the cyber issues and protection of data of an
individual. It also sought establishment of Data Protection Authority which will
entertain issues relating to protection of data and hence the privacy.
In context of aforementioned issues it is also necessary to consider and
acknowledge the perspectives various other countries and try to find out the
possible methods to tackle the third party data interception. It is also
necessary to look at the perspective of honourable Supreme court of India and
various directions and observations made by the court.
There had been innumerous illegal surveillance instances in India majorly in the
Indian politics. Some famous snooping cases includes-
In 1998 the then chief minister of Karnataka Ramakrishna Hegde resigned
following a telephone tapping scandal. He stepped down on moral grounds after
details emerged of wire- taps on 50 individuals including journalists and
decidents within the Janta party. Subsequently, the authorization given to the
state police for tapping too was made public.
Not only this but illegal surveillance has also led to fall of the government
when in march 1991 tow Haryana policemen were arrested for snooping outside
Rajiv Gandhi's residence which led to the resignation of the then prime minister
Chandrashekhar. Furious over the alleged snooping, Rajiv Gandhi decided not to
back Chandrashekhar during the confidence motion. Another major issue of illegal
surveillance was the famous Tata Tapes. The Tata tapes was the first instance of
the leak of the large volume of intercepted conversations the tapes dealt with
conversations of industrialists Nusli Wadia, Ratan Tata and Keshub Mahindra.
The illegal wiretaps published by The Indian express showed Tata's attempts to
get the centre to intercede in a matter in which the United Liberation Front of
Assam (ULFA) was extorting money from tea states, including those owned by Tatas.
Then Prime Minister I K Gujral ordered a CBI inquiry into the audio tape leaks
but shortly thereafter the enquiry was closed for want of evidence.
More than a decade after the Tata tapes hundreds of conversations of corporate
lobbyist Nira Radia were leaked in 2008. Conversations of Radia with leading
politicians, industrialists and journalists were recorded by the income tax
department over a period of 300 days between 2007 to 2009 in connection with the
2G telecom scam. One of the industrialists whom Radia spoke to was Ratan Tata,
following the release of these tapes Tata went to court seeking a restraint on
the media from carrying any more such tapes.
Illegal surveillance has been a reoccurring issue in the Indian history and a
most recent Peagasus virus has questioned the existing legislation on
surveillance in India and also once again realised the need of a modified and
more strict legislation regarding to it. Illegal surveillance has proved to be a
serious threat to e-communication and also endangering the security of an
individuals privacy. Along with privacy of individuals it can also be a threat
to national security and a more strict legislation in relation to it.
The regulation of surveillance is a tough area and there are various laws and
bodies setup by different developed nations which might be having persuasive
value in Indian context.
The Major Countries And Their Regulations On Surveillance Are:
- United Kingdom:
The UK govt has enacted various legislations in regard to regulation of
surveillance, out of which a few major legislations are:
- European convention on human rights (ECHS):
It provides fundamental rights and freedom of the citizen which a current
government must ensure. Article 8 of this convention provides right to
respect to private and family life, his home and correspondence.
- Intelligence Services Act 1994 (ISA):
It makes provisions for issue of authorisation and warrants enabling intelligence services to take against
interception of wireless telegraphy.
- Part 3 Police Act 1997:
It provides requirements and reasons to authorise
interference in person's property and privacy.
- Data Protection Act 2018:
It regulates processing of personal data. It
provides regulation of good information handling with which organisations must
- General Data Protection Regulation (GDPR):
The GDPR is Europe wide law that
applies to use of personal information.
The constitution of Russia provides that each person has right to
privacy and personal and family secrets and everyone has right to keep their
communications secret and its restriction is only subjected to court decision.
Collection, storage and use of one's personal data can only be done with the
In 2007 Russia adopted The Personal Data Law, it was a major law regarding data
privacy issues. It ensures all types of data protection and it also clarify that
what type of data is called private data, what type of data can be collected and
also authorizes that which agencies can collect the data with the consent of the
In may 2014 Russia enacted the Yarovaya Law which controlled Russian telecom and
internet industries. It stated that all the telecom companies have to store all
the voice and text messages for six months and provide the required data on the
request of the police.
Australian government has also made certain legislations in order
keep an eye on interception and surveillance these are Telecommunications
(interception and access) act 1979 it provides a number of provisions that deals
with personal data its interception and storage and provide grounds and
conditions in which a person's data could be intercepted.
Another such legislation is Surveillance devices act of 2004 it is an act of law
in the commonwealth of Australia. This act includes powers which support
commonwealth investigations in limited range of offences.
These were the legislations of few countries however many more other countries
has passed certain act or legislation in regard to the surveillance. Overall we
can see that international perspective also indicates that a personal data of an
individual of their country have all the rights to keep their communications
private and any type of surveillance or collection of such data can lead to
infringement of their right to privacy, however surveillance is also termed as
very useful and helpful tool which when used in bona fide manner can help in
detection of threat to the national security , integrity of country and many
nations use it for surveillance of criminals which help concerned officials in
Surveillance in India is a one of a very recent issues when a spyware called
Peagasus allegedly collected data of around 300 individuals without their
consent and it has made government to rethink their laws and policies regarding
surveillance as there are currently two major legislations which deals with the
surveillance in India and these are:
The Telegraph Act 1885: The Telegraph act of 1885 deals majorly with the
interception of calls. It is an legislation which governs the use of wired and
wireless telegraphy, radio, digital data communications. Its gives jurisdiction
to government of India to establish, maintain, operate and oversight of all
types of wired or wireless communications within the territory of India. It also
provide authorization to government law enforcing agencies to intercept
communication and tapping of phone lines under the conditions defined in the
constitution of India.
This legislation deals with interception of calls and the main section which
governs it is Section 5(2) of the Telegraph act which states that in case any
public emergency or in the view of safety of public, or in the interest of
public the central or state government or any other official on behalf of the
central or state government is satisfied that in the sovereignity and integrity
of India, security of country or to prevent any offence it is necessary to do so
then by the reasons to be recorded in writing that message or any class of
messages to or from any person received by any telegraph shall not be
transmitted, intercepted or detained or shall be disclosed to government.
So under this law the government can intercept calls in certain situations like
for sovereignity and integrity of country and other which is same as the
restrictions imposed on free speech under Article 19(2) of the constitution of
Apart from the aforementioned conditions it is also stated that even this lawful
interception can not be done against journalists.
Information Technology Act, 2000:This act is commonly known as IT Act, 2000. It primarily deals with cybercrime
and electronic commerce. This legislation was framed to provide legal
recognition to transactions carried out by means of electronic communication and
storage of information. It deals with crimes which involves a computer or
network located in India.
In context of surveillance section 69 of the Information Technology Act and the
Information Technology (procedure for safeguards for Interception, monitoring
and Decryption of Information) rules, 2009 were enacted which furthered the
legal framework for electronic surveillance. Under this act all electronic
transmission of data can be intercepted. Apart from the restrictions provided in
the Telegraph act and article 19(2) of constitution , the section 69 of IT act
makes surveillance broader that is surveillance can also be used for the
investigation of an offence.
Apart from these two enabling legislations the government of India had
introduced a bill named as The Personal Data Protection Bill, 2019. The bill
seeks to provide for protection of personal data of individuals and establishes
a data protection authority for the same. This bill proposes processing of
personal data by government, companies Incorporated in India, and foreign
companies dealing with personal data of individuals in India. Personal data is
that type of data which when processed or decrypted can turn out the identity or
recognition of an individual.
However, at present this bill is being analysed by a Joint Parliamentary
Committe and as per the recent observations the experts are seeking that Data
protection bill is loaded in the favour of the government and it is taking focus
away from individual privacy. The Joint parliamentary committee has adopted its
report after two years of long discussion, and in this report they have
suggested various modifications and improvement including the suggestion of
changing its name to 'Data Protection Bill
' dropping the word 'personal'. The
report recommends that same regulator should govern both personal and non-
Now the report of Joint Parliamentary Committee will be tabled in the Parliament
in the upcoming winter session and only time will tell that if passed in
Parliament this bill can bear good results or not.
India being a developing country needs more regulations and restrictions which
can safeguard the privacy of individuals and secure them from any type of
The Supreme Court of India in many cases discussed about the unauthorized
surveillance and how it is violative of the fundamental rights of the citizens.
Some important observations of supreme court are-
In Public Union for Civil Liberties (PUCL) vs. Union of India
court observed that there is a lack of procedural safeguards in the sections of
Telegraph act and laid down certain guidelines for interception of calls.
Further supreme court noted that the concerned authorities fails to keep the
records and logs of the interception. The court said that Tapping is a serious
invasion of individuals privacy and it is the duty of the government to protect
the citizen's right to privacy which is being abused by the authorities.
In the most recent case of Manohar Lal Sharma vs. Union Of India and Ors
Which was based on the Peagasus spyware which allegedly intercepted and
monitored the data of around 300 people in India, SC observed that:
Members of the civilised democratic society have a reasonable expectation of
privacy and every citizen of India ought to be protected against violation of
privacy and by referring to the famous K.S Puttaswamy v. Union of India
 in which supreme court had held that:
Privacy is a constitutionally protected right and emerges as a fundamental right
under Article 21 of the constitution and any law which encroaches upon the
privacy of the individual must meet the requirements for restriction of
fundamental rights mentioned under the constitution. By this supreme court
clearly stated that any type of violation in the privacy of an individual like
unauthorized or unreasonable surveillance must cease to exist.
In the context of illegal surveillance of various journalists and press members
Supreme Court in Anuradha Bhasin vs. Union of India
 held that
Journalists are to be accommodated in reporting and there is no justification in
allowing a sword of Damocles to hang over the press indefinitely.
Supreme court has observed that state has right to deny the certain information
if they fall under the reasonable restrictions of Article 19 clause 2 but other
than this if state try to encroach a fundamental right of a citizen then this
can not be accepted and suggested that Union of India should not be in adversial
position when fundamental right of the citizens is in threat.
So from these few cases discussed, it is evident that Supreme court is of opine
that illegal surveillance is undoubtedly a threat to right to privacy and at
various point in time suggested the government of India not to encroach upon the
fundamental rights of the citizen unless it is reasonable and bona fide
according to Article 19(2) of the constitution of India, and also that if in
case surveillance seems to be an reasonable option then concerned authorities
must keep an record and logs of the data adequately so that the fundamental
rights of citizen are not at par.
Surveillance is a useful tool for maintaining harmony and for security of the
country but if done by third party or unauthorized people can create a lot of
difficulties for people at large and may also affect the well being of the
nation for example in the aforementioned illegal tape cases it can be seen that
how the people which were targeted were very important for the country and
illegal monitoring or snooping may result in a challenge for national security
So in the context of this the need of the hour is that government should become
more strict for the data protection and protection of rights of the citizen of
the country. It can be observed through the Peagasus case that even government
sometimes due to political interests end up violating the fundamental rights of
the people and do the unreasonable things then how about the third party or a
person doing so.
It is evident that new statues need to be enacted in order to impose more
reasonable restrictions on the illegal surveillance and collection of data. It
can be concluded that we still do not have any authority for protection of data
and for checking on those who illegally obtains and store the personal and non-
personal data of individuals. In other nations there are various legislations
which gives the power of keeping data of people to the government like those in
Russia which can result in decreased transparency and increased violation of
one's legal rights.
Hence, we need more broad and comprehensive legislation in our country as India
have a large population and number of digitally active people is increasing day
by day so this is the duty of government to ensure people that data shared by
them is safe and secure and no third party have access to it.
- PRS Legislative Research. 2021. The Personal Data Protection Bill, 2019.
[online] Available at: [Accessed 22 November 2021].
- Assets.publishing.service.gov.uk. 2021. [online] Available at: [Accessed
22 November 2021].
- Thelawreviews.co.uk. 2021. The Law Reviews - The Privacy, Data
Protection and Cybersecurity Law Review. [online] Available at: [Accessed 22
- Sharma, D., Sharma, D. and Sharma, D., 2021. Australia | New
surveillance law allows government to quietly modify your social media posts
in Australia | SCC Blog. [online] SCC Blog. Available at: [Accessed 22
- The Indian Express. 2021. Explained: The laws for surveillance in India,
and concerns over privacy. [online] Available at: [Accessed 22 November
- PUCL vs. Union of India MANU/SC/0149/1997
- Manohar Lal Sharma vs. UOI and Ors. MANU/SC/0989/2021
- K.S Puttaswamy v. Union Of India MANU/SC/1044/2017
- Anuradha Bhasin v. Union of India MANU/SC/0022/2020
- Ram Jethmalani v. Union of India MANU/SC/0711/2011
Award Winning Article Is Written By: Mr.Abhishek Yadav
Authentication No: OT227958614168-6-1022
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