There are routes available to government through which surveillance is done. The archaic law is the Indian Telegraph Act of 18851 and the modern law is the Information Technology Act, 2000.2 The privilege of using technology to create a gap in the right to privacy vests only with government. Conversation tapping is a serious invasion of an individual's liberty except when undertaken where the sovereignty and integrity of India, the security of State, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offence, is involved. It is a common apprehension that every government, howsoever democratic, exercises some degree of interference as a part of its duty to safeguard the national interests of the country; however, at the same time the citizens' right to privacy has to be protected from being abused.
In 2018, the government had issued a press release3 wherein 10 agencies were authorized to conduct surveillance. The hon'ble Supreme Court recognizes the right to privacy as a fundamental right under Article 14, 19 and 21.4 However, there is still a grey area to test between the privacy and the government's duty to protect the sovereignty.5 This grey area can be seen in various countries. In USA, electronic surveillance is considered a search under fourth amendment.6 Under the IT Act, all electronic transmission of data can be intercepted. As far as Pegasus like spyware7 is concerned, the government has to invoke both IT Act and Telegraph Act to conduct the surveillance. Recently, a petition8 has been filed before the Supreme Court highlighting the unauthorized and unfettered surveillance by the Government of India which breached the constitutional guarantees as provided in the Constitution. The ruling party claimed that there is no prima facie evidence to back up the allegations that certain phones had been hacked by the government.
In 2019, Whatsapp9 disclosed that Pegasus has been in use to send malwares to phones through Whatsapp calling. An international consortium of media organizations including Guardians, Amnesty's Lab have revealed that there were successful attacks by Pegasus on iPhone users which discredits the highest claims of Apple towards security. The said attack is criticized by the lawyers of Pegasus denying the said allegation. It further claims that the software is only being provided to the vetted governments for national security, counter terrorism and national security. The present scenario of allegations related to massive surveillance paves the way for future democracies of the world. A bench comprising Chief Justice of India N.V. Ramana10 and Justice Surya Kant quoted "allegations serious, truth has to come out provided the news reports were true". The breach of constitutional safeguards by the State is however, more important issue and the court has to strike a balance between the absolute power of State and the Right to Privacy11. In the times of internet lens, there must be proper demarcation in legislation creating reasonable restrictions and creating more defined lines in deciding the breach of sovereignty. The boundaries of national interest are manipulated by the governments to a greater extent which can never be put to strict proof.
The issue is very sensitive and unspoken, due to which the issue was never addressed properly and the boundaries of surveillance can never be monitored unless the monitoring is done by an independent government agency comprising of Retd. Supreme Court judges, Retd. High Court judges and several other members holding post not below a Joint Secretary. The inclusion of the judges is imperative to properly adjudicate the cases wherein the probe is pertaining to the breach of national interest as the same has extremely wide interpretation. One may have different perspective towards nation's interest and the government has liberty to mold the parlance of national interest. Therefore, there can be a separate commission wherein cases related to probing for alleged breach of fundamental rights can be adjudicated. The citizens can file their cases before this dedicated commission and the proceedings of the commission must be kept confidential to protect the sovereignty of India. There are methods through which sovereignty can be protected and at the same time, the right of privacy can be balanced.
There can be many other methods subject to compliances of law, which can create proper legal boundaries and safeguard the surveillance. Surveillance itself cannot be brought to a full-stop as it is a necessary tool to protect the nation from the misuse of fundamental rights by citizens. There are many other elements in our society which require surveillance by the investigation agencies especially in cases of preventing massive attacks. For e.g., proper surveillance could have prevented 26/11 attacks, Rajdhani Bomb Blasts and many more. Another example is an improper surveillance could attack tenets of Article 1912 in journalism. Thus, surveillance is not the real issue, but to what extent it can be carried out and in what manner - that is the real subject matter. The legal safeguards in a field where the boundaries cannot be traced, can be made by formulating proper rules and creating independent government agencies/commissions.
Footnotes
1. The Telegraph Act since then has gone through numerous amendments in order to accommodate new communication technologies.
2. The primary objectives of the IT Act, 2000 are: Granting legal recognition to all transactions done through electronic data exchange,
3 Press Release dated 21.12.2018
4 Constitution of India, 1950
5 Sovereignty is a political concept that refers to dominant power or supreme authority. In a monarchy, supreme power resides in the "sovereign", or king. In modern democracies, sovereign power rests with the people and is exercised through representative bodies such as Congress or Parliament.
6 The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.
7 Pegasus (Q Suite), marketed by the NSO Group aka Q Cyber Technologies as "a world-leading cyber intelligence solution that enables law enforcement and intelligence agencies to remotely and covertly extract" data "from virtually any mobile devices", developed by veterans of Israeli intelligence agencies. It is available only for governments of countries.
8 Advocate ML Sharma, Journalists N Ram and Sashi Kumar , CPI(M) Rajya Sabha MP John Brittas, five Pegasus targets (Paranjoy Shataksi), social activist Jagdeep Chhokkar, Narendra Kumar Mishra and Editors Guild of India.
9 WhatsApp Inc. was founded in 2009 and bought by Facebook in 2014 for $19 billion. Facebook's biggest property is now WhatsApp, after its messenger service and Instagram.
10 In petition filed before Supreme Court by Advocate M.L Sharma and various others.
11 Justice K. S. Puttaswamy (Retd.) V Union of India. The judgement also paved the way for landmark judgements like the decriminalization of homosexuality in Navtej Singh Johar v. Union of India (2018) and ending the provisions of the crime of adultery in the Joseph Shine v. Union of India case (2018).
12 According to Article 19 (1) (a): All citizens shall have the right to freedom of speech and expression. This implies that all citizens have the right to express their views and opinions freely subject to reasonable restrictions.
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