Legal

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This Blog is written by Yash Yadav from Alliance University, Bengaluru. Edited by Prakriti Dadsena.

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ABSTRACT

This article will revolve around surveillance which is done by the government in India. This article will also talk about the surveillance mechanism that exists in India while covering the history of surveillance laws in India and will cover with a situation where there is the complete evolution of privacy in court as it was declared as a fundamental right of every citizen in India along covering the legal framework related to the Data surveillance in India.

INTRODUCTION

India is considered as one of the countries where government surveillance has become a major concern in terms of data privacy. The concern is all about the Rules that allow governments of a country for having access to citizens’ personal data still undermines the overall privacy protections that some countries offer to their citizens residing in that particular country. As we know, India has been named as a country which has a minimal restriction on data privacy and security in terms of government surveillance. Before going into data surveillance in-depth, one should know what surveillance is. Surveillance is the observation and collection of information that is been practiced for the purpose of collecting, managing, or directing behavior or information. This data surveillance may include remote monitoring by the use of electronic devices or by the obstruction of electronically transmitted information such as Internet traffic. It may involve simple technical methods. The government uses this Surveillance to gather intelligence with a intention to prevent crime or to protect a process, person, group, or object and to investigate a crime. But this article will talk about the constitutional validity of this Data surveillance done by the government as earlier, the right to privacy was a fundamental right of every citizen and then on December 20, 2018, the Ministry of Home Affairs of India issued an office order that security and intelligence agencies would be given allowed to intercept and have access to all personal data on computers and networks in India. The nature of this authorization raised significant concern for the protection of the right to privacy in India.

SIGNIFICANCE OF THIS DEVELOPMENT

In 2017, there was a huge evolution in the field of right to privacy as in the Supreme court case which would be discussed later in detail in that case the Right to privacy was considered as Fundamental Right of every citizen in India but this right was not absolute. This was landmark judgement but after that the same supreme court completely changed the whole situation as they upheld the Aadhar card and PAN linkage and allowed the same number that can be used for the schemes organised by the government and as currently there are around 8 surveillance programs used by the government for state surveillance keeping in mind the Naxalist and terrorism insurgency and there are various programs which has various difference objective and purpose to be filled and various programs are like Central Monitoring System (CMS) is used for collection, storage access and analysis and Network Trafficking Analysis system (NETRA) is used to spy and monitor on the internet services and as   already discussed then the Home ministry directed central agencies including Delhi police Commissioner, Central bureau of Investigation and Director general of Intelligence to pass the personal computer information under the Information Technology 2009 Rules under the power of subsection 2 of section 69 as it authorizes security and intelligence agencies to gather information, interrupt, monitor and decrypt any information generated, transmitted, received in any other source and if we talk about these  Agencies like the Delhi Police, CBI and the Directorate of Revenue Intelligence cannot be called home security agencies, so this would be considered a serious move to infringe on their right to privacy.

STATUTORY PROVISIONS

In India, there are no so many specific laws that permit mass surveillance in India but there also very few laws that deals with it i.e. Telegraph Act 1885 and Information Technology Act 2000 recently amended in 2009. Now, if we talk about Section 5 of the Telegraph Act is commonly known as the wire-tapping section. It empowers the government to seize any licensed wire in the event of a public emergency or in the interest of public safety as an exception. It may also order the suspension of communications in the interest of India’s sovereignty and integrity, for the security of the state, for friendly relations with foreign states or for public order or to prevent the commission of crime from being provoked. However, the government will have to follow some established procedures by law to issue such an order.

Surveillance in India used by the government has a legal route for surveillance that the government can run. The laws governing this are the Indian Telegraph Act 1885 is the one which deals with the interception of calls and the other one is the Information Technology Act 2000 which deals with data constraints.

CASE LAWS

1) People’s Union for Civil Liberties vs. Union of India

In this case, the Supreme Court of India ruled that telephone tapping was a serious violation of a person’s privacy. Nevertheless, the legal impediment may be undertaken in certain circumstances specified in the Wire taping provision. This type of legal intervention is subject to certain guidelines that will serve as an investigation into wiretapping by law enforcement agencies. It also directed the government to make rules and take action to legally stop the communication. It also provided basic guidelines for such disruption.

2) S. Puttswami v. Union India

On 24^th August 2017, a nine-judge bench of the Supreme Court overruled Kharak Singh Case and passed privacy landmark judgment. The court declared privacy as an integral part of Part III  of Indian Constitution in which guarantees our fundamental rights ranging from equality rights (Articles 14 to 18), Freedom of speech and expression and Freedom of movement come under the article 19  and Protection of life and personal liberty that comes under the Article 21and These fundamental rights cannot be granted or stripped off by law and must be complied with by all laws and business practices but however, the supreme court made it clear that like the other fundamental rights, this right to privacy is not a fundamental Right.

3) AADHAR CARD CASE:

In this case only the whole situation of privacy changes by the same Supreme Court who once passed the landmark judgment which was the right to privacy as a fundamental right in the Indian constitution but in this case, the Supreme Court upheld the Constitutionality of the Adhaar card linkage with the PAN card.

ANALYSIS

First of all, if we analyze the whole situation of data surveillance done by the Government, Earlier, right to privacy is a constitutionally recognized right as In its Landmark Judgment j, the court was concerned about the individual’s freedom and right to privacy was made the fundamental right of every citizen under the Indian Constitution. Consequently ,There is an security that has been developed to be in line with freedom interests that does not have to be in line with the broader right to privacy which can be seen in the Supreme Court Aadhaar jurisdiction in 2018, where the court mandated judicial scrutiny for information sharing requests for Aadhaar data in which the court analysed the state imperative access to information against the state’s new, broader rights parameters and upheld the Aadhar act in which the Aadhar card was linked with PAN Card. In doing so, the court ruled that judicial oversight is a necessary precondition for limiting the interests of confidentiality.

Second of all, in both  the case of  Puttswamy which is the right to privacy  and Aadhaar, the Supreme Court has saw and  recognized the deeply broad role of the Internet and computers in the last few years in India as currently, People’s lives are deeply interconnected by the technology i.e. Internet as now all the things are done digitally and a person can do anything on internet easily that’s why it is convenient and most of the public is connected with internet and due to which large amounts all type of data including personal, financial and sensitive data pass through today’s computers on a scale consistent with the context in which the guidelines were formulated. This presents serious threats to freedom of expression and activism on the Internet and particularly overseeing all law enforcement in India. As a result, it seems reasonable to adjust the framework developed in the telephone-age to modern surveillance.

CONCLUSION

At the last, we can conclude that the Right to privacy was a landmark judgment passed by the supreme court in 2017 in the field of privacy but after, the one year, they upheld the Aadhar card judgment and stated that it does not violate any fundamental right protected under Indian constitution which completely changed the situation and concern is aroused about the Validity of Data Surveillance. Till, now specifically nothing more can be said clearly but there is a positives side as the new Data Protection Bill is been introduced in India’s first legal framework for personal data protection, introduced in December 2019 which could do little to prevent such surveillance but it is yet to enact.

REFERENCES

[1] ‘Are India’S Laws on Surveillance a Threat to Privacy?’ (The Hindu, 2020) <https://www.thehindu.com/opinion/op-ed/are-indias-laws-on-surveillance-a-threat-to-privacy/article25844250.ece> accessed 25 June 2020

[2] ‘The Personal Data Protection Bill, 2019’ (PRSIndia, 2020) <https://www.prsindia.org/billtrack/personal-data-protection-bill-2019> accessed 25 June 2020

[3] ‘India’S Expanding Surveillance Scheme Violates the Right to Privacy’ (OHRH, 2020) <https://ohrh.law.ox.ac.uk/indias-expanding-surveillance-scheme-violates-the-right-to-privacy/> accessed 25 June 2020

[4] Goswami T, Government’S Data Surveillance’ (Legal Bites – Law And Beyond, 2020) <https://www.legalbites.in/constitutional-validity-governments-data-surveillance/> accessed 25 June 2020