December 9, 2022

Pegasus and the Legal Routes to Surveillance

The Pegasus row continues to shake the pillars of the democracy as the surveillance issue raise the concern of breach of fundamental rights of the citizens.

The Pegasus row continues to shake the pillars of the democracy as the surveillance issue raise the concern of breach of fundamental rights of the citizens. Although Government surveillance is considered illegal in certain terms, there are several laws that provide immunity to the government of India to conduct surveillance.

Legal routes to surveillance:

Indian legal system Provides Laws and Rules through which the Government of India can conduct legal surveillance.

While Surveillance is permitted under certain circumstances, hacking is expressly prohibited under the Information and Technology (IT) Act 2000.

Surveillance is basically an interception of the communication permitted under certain situations and this type of government surveillance is mentioned in the following Acts.

  1. Telegraph Act, 1885
  2. IT Act, 2000

Both the Acts allow only the Government, under certain circumstances, to conduct surveillance. Private actors are not permitted any type of surveillance activities under the said laws. With the advent of the awareness in Data Protection and Right to Privacy the era of surveillance need to be more reasonable and responsible to balance between the security of the nation and rights of the citizens.

Essence of Surveillance in the Telegraph Act, 1885

It governs the use of wired and wireless telegraphy, telephones, teletype, radio communications, and digital data communications. Section 4 of the Act gives the Government of India exclusive jurisdiction and privileges for establishing, maintaining, operating, licensing, and oversight all forms of wired and wireless communications within Indian territory.

“Telegraph” definition is covered under section 3 of the Act which states that Telegraph is any appliance instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.

Section 5(2) specifically holds the essence of Surveillance in India.


It states that “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offense, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: ”


Limitations Under Section 5 of Telegraph Act:

Section 5(2) of the Telegraph Act can be imposed by the Government under special circumstances, as mentioned above, provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained unless their transmission has been prohibited under this sub-section.

Explanation: Under this law, the government can intercept calls only in certain situations 

  • the interests of the sovereignty and integrity of India
  • Security of the state
  • friendly relations with foreign states
  • Public Order
  • preventing incitement to the commission of the offence

Moreover, these situations are considered when there is a condition precedent of “Occurrence of any public emergency or in the interest of public safety.

It is to be considered that these are similar restrictions that are imposed on free speech under Article 19(2) of the constitution. And the section of the act specifically mentions that these rules will not apply to press publications hence journalism should not be affected by these laws.

Rule 419A

The Origin of these Rules can be traced to the case of “Public Union for Civil Liberties v Union of India (1996)” Supreme Court. Courts held that “citizen’s right to privacy has to be protected from being abused by the authorities during the exercise of communication interception powers of the government”

Rule 419A states that a Secretary to the Government of India in the Ministry of Home Affairs can pass orders of interception in the case of the Centre, and a secretary-level officer who is in charge of the Home Department can issue such directives in the case of a state government. In unavoidable circumstances, Rule 419A adds, such orders may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorized by the Union Home Secretary or the state Home Secretary.

Essence of Surveillance in IT (INFORMATION TECHNOLOGY ACT), 2000

Section 69 of the IT Act

It states the “Power to issue directions for interception or monitoring or decryption of any information
through any computer resource.”

It gives Government the powers to direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or
stored in any computer resource.

These powers can be exercised by the Government only under specific conditions similar to Section 5 of the Telegraph Act 1885. The act states that the Government can exercise interception of the communication if it is “satisfied” that it is necessary to do so —

  • in the interest of the sovereignty or integrity of India
  • defence of India, security of the State
  • friendly relations with foreign States
  • public order or for preventing incitement to the commission of any cognizable offence relating to above.
  • for investigation of any offence

Conclusion:

Government can, up to a certain limit, can conduct surveillance legally in India but that depends upon the various situations and precedent conditions. This does not mean that Government has full authority to surveillance. The power to conduct surveillance is restricted similar to the freedom of speech.

Moreover, Section 43 and Section 66 of the IT Act cover the civil and criminal offences of data theft and hacking respectively. This specifically deals with the case of “Pegasus” spyware, where Government should deal with the question of ethical hacking.

The Supreme Court in a landmark decision in August, 2017 (Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Others) unanimously upheld the right to privacy as a fundamental right under Articles 14, 19 and 21 of the Constitution. It is a building block and an important component of the legal battles that are to come over the state’s ability to conduct surveillance.