Book House

On the design of surveillance in India and the PUCL guidelines

  • The book “What Privacy Means: Why It Matters and How We Can Protect It” by Siddharth Sonkar analyses the history and understanding – both cultural and political – of privacy in India and establishes why objecting to interference with privacy is the pressing need of the day.

  • Taking a deep dive into the grating realities of individual privacy, Siddharth Sonkar explains how an Indian citizen’s privacy is hardly ‘private’. In the process, he urges us to question whether in India, where boundaries between the personal and public are increasingly becoming blurred, relationships of trust between governments, corporations and individual citizens can at all be rebuilt.

  • Today, when our privacy is in the process of being invaded, constantly and insidiously, this incisive, revelatory and thought-provoking book provides a roadmap for everyone who is unsure of the rights they are entitled to as they continue to live their lives online.

  • Read an excerpt from the book below.

Design of Surveillance in India

Broadly, surveillance laws in India flow from both laws made by statutes and, in the absence of a parliamentary law, administrative regulations notified by the executive arm of the government. The statutory framework comprises the Telegraph Act 1885, the Information Technology Act 2000, and the various powers available with law enforcement to issue notices for summons and carry out searches and seizures under various statutes such as under the Code of Criminal Procedure 1973 and the Income Tax Act 1961. However, certain surveillance programmes, as mentioned in the introduction, such as the Central Monitoring System (CMS), NETRA and NATGRID (discussed below), do not have a clear basis in any law (the book later discusses why this may be a problem). Admittedly, however, the status of NETRA and NATGRID, and whether they are currently operational, remains unclear from news reports.

Statutory Framework

Section 5 (2) of the Telegraph Act 1885 enables the government to wiretap our phones (that is, by intercepting telephonic communications) provided that certain conditions are satisfied. First, either a public emergency or a public safety concern must exist. Second, that the interception must be in the interests of the sovereignty and integrity of India, friendly relations with foreign states, security of the state, public order or to prevent the incitement to the commission of an offence.

The PUCL Guidelines

Back in 1997, the People’s Union of Civil Liberties (PUCL) filed a writ petition before the Supreme Court, challenging the constitutionality of Section 5(2). The challenge was based particularly on the absence of sufficient procedural safeguards (such as, independent oversight over surveillance orders that are issued, deletion of information when not necessary further) to protect the information collected through such a wiretap. It was argued before the court that the provision for wiretapping infringed the fundamental right to privacy without laying down the proper procedure to conduct surveillance and was, therefore, unconstitutional.

This argument was based on the accepted rule inter alia since Maneka Gandhi v. Union of India, when the petition against the arbitrary impounding of Maneka Gandhi’s passport in 1976 led to a landmark Supreme Court judgement affirming the right to personal liberty, that restrictions on fundamental rights should be through a fair and reasonable procedure that is not arbitrary or unjust.

It is important to note that PUCL was arguing before the Supreme Court in the late 1990s. This was much before the Privacy judgement of 2017. In other words, the right to privacy was yet to be declared a fundamental right under the Constitution unanimously by nine judges. There was still some confusion on what the right to privacy meant in the context of the Indian Constitution. As a result, the extent of the government’s ability to carry out surveillance (that is, whether bulk surveillance of many citizens at once) was not very clear. But it was not just that – in those times, the penetration of telecommunications technology had not occured to the extent that we witness today. Also, computers and mobile phones were used only by a few people who were fairly privileged and were able to afford them. The idea of mass surveillance of citizens at large with extremely low levels of telecommunication penetration and relatively primitive telecommunications technologies could not have been envisaged bulk surveillance that has become evident from the Snowden revelations.

The Supreme Court in the PUCL case upheld the constitutionality of conditions under which surveillance was permitted, such as a public emergency or a threat to public safety. It, however, narrowed down the meaning of these conditions. For instance, the Supreme Court explicitly defined the meaning of a public emergency, to limit the circumstances under which wiretapping is legally permissible. The court kept the threshold fairly high: the circumstances would need to attain some degree of seriousness for wiretapping to be constitutionally permissible. A public emergency means ‘the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action’. Further, ‘public safety’ was defined to mean a state or condition of freedom from danger or risk for the people at large. The Supreme Court in the PUCL judgement categorically observed that in the absence of (i) either a public emergency, or (ii) a public safety concern, the state should refrain from resorting to telephone tapping. The Court further observed that the occurrence of a public emergency or a condition affecting public safety would be self-evident (that is, apparent) to a reasonable person, and would not be secretive or hard to identify.

In other words, wiretapping can only be legal if it is carried out in accordance to averting a public emergency or a public safety concern as defined by the court. A strict and clear definition was the substantive conditions or safeguards laid down by the court. Beyond these substantive safeguards, the Supreme Court in PUCL also laid down procedural safeguards to fill in a vacuum, since at the time, privacy safeguards in the procedure to be followed while carrying out interception of telephone communications were yet to be prescribed. These came to be known as the PUCL Guidelines. The court required that a review committee independently assess the decisions to intercept or pass an order for telephone tapping. The court also directed that any records obtained through interception illegally, without following due process, should be destroyed. This was an extremely positive step from the court’s end – the idea was to disincentivize excessive or unwarranted surveillance. To implement the orders of the Supreme Court in the PUCL judgement, these guidelines were internalized by the government into Rule 419A of the Telegraph Rules. Rule 419A now prescribes the legal procedure for authorizing an interception (for example, who must be the relevant sanctioning authority, what should be the review process and the duration for which interception may take place). The Telegraph Rules, 1951, limit the number of the authorities that can sanction orders of interception or surveillance – the power is restricted to a few authorities, such as the home secretary at the central or state level (depending upon the government concerned) and, in unavoidable circumstances, the joint secretary. The Telegraph Rules also stipulate the procedure to be followed by competent government authorities in sanctioning such orders and directed that the review committee must independently scrutinize the correctness of the decisions to conduct surveillance. Even though this was a positive step towards creating checks and balances in the system, the review committee has been criticized for not being sufficiently independent of the branch that sanctions orders of surveillance, since it is mostly composed of government officials.

Excerpted with permission from What Privacy Means: Why It Matters and How We Can Protect It, Siddharth Sonkar, Hachette India. Read more about the book here and buy it here.


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