People’s Union for Civil Liberties

People’s Union for Civil Liberties (PUCL) PIL Challenging Surveillance Powers Under The Telegraph And IT Act admitted by Supreme Court

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The Supreme Court on Friday sought response from the ruling government(Modi Government) on a petition filed by the People’s Union for Civil Liberties (PUCL) challenging the constitutional validity of government’s power of surveillance under section 5(2) of the Indian Telegraph Act read with Rule 419-A of the Indian Telegraph Rules of 1951 and section 69 of the Information Technology Act and the Information Technology (Procedures for Safeguards for Interception, Monitoring and Decryption of Information) Rules of 2009 contending that the said provisions permit surveillance which violates fundamental rights and freedoms under Articles 14, 19, and 21 of the Constitution and cause injury to public interest.

This all started with a recent order dated December 10, 2018 by Home Ministry authorizing 10 central agencies to monitor and intercept data contained in computer systems throws the spotlight on the laws for such interception, including of data contained in phones.

Lawful interception of phones and computers can be done by the governments at the Centre and in the states under Section 5(2) of the Indian Telegraph Act, 1885. If done illegally, it is punishable under sections 25 & 26 that provide for imprisonment up to three years, with or without a fine.

This was laid down by the Supreme Court in 1996 (PUCL vs Union of India). While ruling that the right to have telephone conservation in the privacy of one’s home or office is part of the Right to Life and Personal Liberty described in Article 21 of the Constitution, which cannot be curtailed except according to the procedure established by law, the Supreme Court observed that Section 5(2) does not confer unguided and unbridled power on investigating agencies to invade a person’s privacy. The court laid down safeguards:

  1. Tapping of telephones is prohibited without an authorizing order from the Home Secretary of the Union government or of the state government concerned.
  2. The order unless is valid for two months; if renewed, it cannot remain in operation beyond six months.
  3. Phone tapping or interception of communications must be limited to the address specified in the order or to addresses likely to be used by a person specified in the order.
  4. All copies of the intercepted material must be destroyed as soon as their retention is not necessary under Section 5(2).

There is no judicial or parliamentary oversight to review cases of lawful interception. The orders of the competent authority clearing lawful interception, however, are reviewed by a review committee under Rule 419-A of the Indian Telegraph Rules, 1951. At the central level, it is headed by the Cabinet Secretary, with the Law Secretary and the Secretary (Telecom) as members. At the state level, it comprises the Chief Secretary, the Law Secretary and another member (other than the Home Secretary) appointed by the state government. Under the SC guidelines, the review committee on its own, within two months of an order, investigates whether its passing is relevant. Rule 419-A provides for the procedure and precautions for handling lawful interception cases to ensure that unauthorized interception does not take place.

Present petition filed before a bench headed by Chief Justice Ranjan Gogoi, the petition, citing RTI replies, Ministers’ reply to Parliament as well as “Transparency Reports” published by Google, Facebook, and Twitter, have pointed out “rampant abuse and misuse” of the surveillance power by the government.

Citing RTI replies in 2011 and 2013, the petition pointed out to the Ministry of Home Affairs revealing that “7500 to 9000 orders for interception of phone calls are issued monthly by the Central Government. In addition, it was revealed that about 500 orders are issued every month for interception of emails”.

Enclosing the transparency reports, the petition said that Google received 5,105, Facebook 16,580, Twitter 355 and Yahoo 722 requests respectively, regarding user information from the government.

PUCL has highlighted the “rampant and the indiscriminate use of surveillance powers”.

In the wake of the “sea change in communication technology” based on wireless, digital electronic technology, PUCL stresses on the need for judicial oversight to check “arbitrary and surreptitious electronic surveillance of citizens”.

The petition seeks declaring as unconstitutional, Section 5(2) of the Indian Telegraph Act, Rule 419-A of the Telegraph Rules, Section 69 of the Information Technology Act and notifications/circulars issued under these provisions.

By- Abhinav Jassal
Student reporter, INBA