Strike a balance between surveillance and privacy

KP Singh

Former DGP, Haryana

BOTH Houses of Parliament passed the Telecommunications Bill, 2023, last week. The telecom sector in India has been governed under four laws: (a) the Indian Telegraph Act, 1885, providing for licensing of telegraph-related activities and interception of communication; (b) the Indian Wireless Telegraphy Act, 1933, for regulating the possession of wireless telegraph apparatus; (c) the Telegraph Wires (Unlawful Possession) Act, 1950, for regulating the possession of telegraph wires; and (d) the Telecom Regulatory Authority of India (TRAI) Act, 1997, for regulating tariffs.

Since telecommunication services have evolved significantly over the years in terms of technology and the variety of facilities offered to provide real-time transmission of text, voice, images and video information, restructuring the legal and regulatory framework for the telecom sector was long overdue. Earlier, an attempt was made in 2001 to replace the three telegraph laws, and the Communication Convergence Bill was introduced in the Lok Sabha. However, the Bill lapsed with the dissolution of the 13th Lok Sabha.

Salient features of the present Bill include authorisation for telecom-related activities, assignment of the spectrum, powers of interception and search, protection of users, right of way, appointments to TRAI, Digital Bharat Nidhi, offences and penalties and an adjudication process. The Bill seeks to repeal the Telegraph Act and the Wireless Telegraphy Act.

The Bill provides that communication between two or more individuals or entities may be intercepted, monitored or blocked by the state instrumentalities on specified grounds; such grounds include: (i) the interest of the security of the state, (ii) friendly relations with other countries, (iii) public order, or (iv) prevention of incitement to offences. Telecom services in an area may also be suspended on such grounds. In order to protect the users against any mala fide snooping, the Bill provides that the existing rules framed under the Telegraph Act, specifying the procedure and safeguards for the interception of communication, will continue to be in force; these provisions, contained in Rule 419 (A) of the Indian Telegraph Rules, 1951, were framed in 2007 in line with the directions of the Supreme Court in PUCL vs Union of India (1996).

As per these safeguards, no communication can be intercepted without prior approval of the Home Secretary of the state or the Union Home Secretary, as the case may be, except in cases of operational exigencies and practical difficulties where interceptions up to seven days could be resorted to by the order of an officer of the rank of Inspector General of Police or above. All interceptions are to be reviewed biannually by a committee under the chairmanship of the Cabinet Secretary or the Chief Secretary of the state.

It is argued that the oversight mechanism to review interceptions is not an appropriate safeguard as no senior functionary of a government would ever doubt the actions of its enforcement agencies, performed on the grounds of protecting the interests of the state. This is also against the principle of separation of powers.

The question whether judicial oversight should be necessary for monitoring interception was discussed in the PUCL judgment; the court had observed that judicial scrutiny would have to be provided through the statute. Since an affected person may never come to know about his communications being monitored, he cannot challenge such an order for potential illegality; therefore, it becomes the duty of the state to prescribe strict procedural safeguards against unwarranted snooping. We must learn from Australia and the UK, where judicial authorisation of interceptions is prescribed.

Another provision which overshadows privacy issues for the sake of improving the security environment is the power to intercept, monitor or block communications where a particular word or set of words is used. Such an order would require all communication to be monitored; such monitoring would definitely lower the degree of privacy of communication for all users. In the Justice KS Puttaswamy case (2018), the SC has held that any infringement of the right to privacy should be proportionate to the need for such interference.

There is no denying the fact that such surveillance may be necessary at times to prevent serious crimes having a bearing on national security and social peace. However, it merits serious deliberations on whether it would be prudent to lower the degree of privacy of communication of all subscribers of a telecom network to filter a few objectionable messages. It certainly raises the question of proportionality and calls for an independent mechanism to judge it.

The Bill provides that telecom service providers must verify the identity of their subscribers through any verifiable biometric-based identification; it has been the demand of the law enforcement agencies. This provision, too, may fall short on the standard of proportionality, and may infringe upon the fundamental right to privacy as biometric information is personal data and its collection and use are protected by the fundamental right to privacy. In the Puttaswamy case, the SC noted that “for the misuse of such SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives”. Less intrusive identity fixers such as a PAN card or voter ID card may be used for issuing SIM cards, in addition to prescribing KYC norms on the pattern of opening a bank account.

In our constitutional scheme, fundamental rights are not absolute; concerns of national security, decency, morality and public order would always take priority over rights of individuals. At the same time, fair play demands that an independent oversight mechanism should be in place to guard against misdirected and overzealous snooping on citizens by unscrupulous elements.

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