The government’s 20 December 2018 notification which formalises amendments introduced to the Information Tax (IT) Act in 2008 to allow central agencies ranging from the Intelligence Bureau to the Cabinet Secretariat to intercept, monitor and decrypt “any information” from any computer resource, is currently being challenged in the Supreme Court. The amended IT Act allowed such a provision if the “sovereignty or integrity of India” was ever impinged upon. Petitioners against this notification consider it to be a violation of Article 21 of the Constitution, which states that a person’s individual freedoms cannot be infringed upon.

Historically, snooping in India has been justified under the purview of maintaining “national security.” Even before the internet had arrived, the Indian government was intercepting communications under colonial era laws that had been retained post independence.

This reading list looks at a series of articles on the ethics and legality of wiretapping, written by A G Noorani from the 1980s. Specifically, these articles discuss the Indian Telegraph Act, 1885 and the Indian Post Office Act,1889 both of which allow the state to intercept private communication.

Where Are the Safeguards?

In 1985, Noorani wrote that Section 5(2) of the Indian Telegraph Act, 1885 and Section 26 of the Indian Post Office Act, 1898, both of which enable phone-tapping and mail interception in India, violate fundamental rights and are therefore unconstitutional. He suggested that Indian wiretapping laws should be modelled on the Interception of Communications Bill that had been introduced in the British House of Commons.This bill had safeguards that ensured personal communications could be intercepted only in cases of national security, so as to ensure minimal invasion of privacy. A tribunal was also to be set up to investigate claims of undue surveillance.

“The Tribunal will consist of as many as five persons each of whom shall be lawyers of at least ten years' standing. They are appointed each for a five-year term. There will be a President and a Vice-President of the Tribunal. In short, it will be a high-powered body. The Tribunal will determine its own procedure. These are the barest minimum safeguards. Without them the Indian law—Section 5(2) of the Indian Telegraph Act, 1885 and Section 26 of the Indian Post Office Act, 1889, which respectively enable phone-tapping and mail interception—are violative of fundamental rights and therefore unconstitutional.”

How Can Privacy and Security Be Balanced?

The Indian Post Office (Second Amendment) Bill, 1986, was ready to be passed in Parliament, despite then President Zail Singh’s reservations about its provisions; particularly, he did not approve of the government being allowed to censor personal mail. In this context, Noorani’s 1987 article once again referred to Britain’s Interception of Communications Act, which appointed a “commissioner” who was to act as a watchdog over authorities to ensure that warrants granted under the act were not being misused in this manner.

"Snooping is bad. But here is a country without a written constitution and without fundamental rights which would invalidate offending legislation. Yet it lays bare to the citizen the manner in which snooping is carried out and provides safeguards against it. In India a journalist who unravels such secrets might be hauled up for violating the Official Secrets Act."

In 1988, Noorani further asserted that an act designed along the lines of the British Interception of Communications Act could be emulated in India, and said that a judicial warrant should, in fact, be a necessity if the state intended to intrude on a person’s privacy.

"It must be borne in mind that the right to privacy is a recognised aspect of the right to personal liberty guaranteed by Article 21 of the Constitution. It can be regulated only by a procedure which is just and fair and which does not violate the other fundamental rights; for instance the right to freedom of speech. By this incontestable test, the present statutes which sanction phone-tapping and mail interception are utterly unconstitutional. They lack the barest minimum safeguard of judicial warrant for the violation of privacy."

How Legitimate Was the Law?

In 1990, Noorani wrote that it was the “quality of law” which should be paramount. Thus, he said, the Indian Telegraph Act was void as it did not lay down a surveillance procedure. Noorani compared the provisions of the Indian Telegraph Act with the European Court’s ruling on the French Code of Criminal Procedure to highlight the inadequacies of the Indian legislation.

"In the instant case the French government had listed seventeen safeguards against abuse in the French Code of Criminal Procedure. How many does our Indian Telegraph Act provide? None. Yet the European Court found that the French system did not afford sufficient safeguards against abuses… what is interesting is that the court rejected the narrow view that 'law" means any law or statute The court ruled that it was concerned also with the "quality of the law”. Not with legislative policy but with "the requirements of fundamental principle of the rule of law"."

What Kind of Limits Can be Placed on Intelligence Agencies?

The Shah Commission, which was set up to examine excesses committed during the Emergency of 1975–77, found that intelligence agencies in India could gravely misuse the parameters for surveillance. Noorani’s 1989 article compared the Indian scenario with the United Kingdom and the United States where there were laws to regulate the surveillance powers available to MI5, MI6 and the Central Intelligence Agency respectively, without infringing upon their ability to function clandestinely. Noorani was also concerned with the discourse surrounding the use of the Indian Telegraph Act: Giridhar Gomango, who was then the minister of state for communications, had said that it was permissible for authorised officers to use the act for surveillance of the Indian populace.

The Indian citizen is entitled to the fundamental right embodied in Article 21 of the constitution. He shall not "be deprived of his life or personal liberty except according to procedure established by law". Surveillance, phone tapping and mail snooping are clear violations of 'personal liberty'... At any rate it is now imperative that the functions of the IB and RAW are defined by statute and safeguards provided in the statute against the abuse of powers, Our 'nationalists' become silent on these bodies while denouncing the behaviour of intelligence bodies elsewhere.

Read More: