By – Munibar Barui
Recently, the Pegasus report issued by The Wire and 16 international media houses has left us stunned to our core on the appalling state of our Union Government. Even though our Union Government claims that everything takes place legally, but all us knows that what goes on in the background of such inceptions provided by the Union Government.
In Indian context, there are two laws Telegraph Act, 1885 and the Information Technology Act, 2000 which govern the surveillance scenario.
The section 5(2) of Telegraph Act allows the government to intercept certain calls only in particular situations—the interests of the sovereignty and integrity of India, the security of the state, sociablerelationships with foreign states or public order, or for avertingprovocation to the commission of an offence. These are the same restrictions imposed on free speech under Article 19(2) of the Constitution.Furthermore, a sub-clauseunder Section 5(2) states that even this lawful interception cannot take place against journalists.
In Public Union for Civil Liberties(PUCL) vs. Union of India (1996), the Supreme Court identified the lack of procedural safeguards in the provisions of the Telegraph Act.Further, Supreme Court laid down certain guidelines for call interventions (mainly for surveillance purposes). In due course, the Supreme Court’s guidelines formed the basis of introducing Rule 419A in the Telegraph Rules in 2007, and later in the rules given under the Information Technology (IT)Act, 2000 and the Information Technology (IT) Rules, 2009.
Under the IT Act, all electronic transmission of data can be interrupted. In this context, for a Pegasus-like spyware to be used legitimately, the Union Government would have to raise both the IT Act and the Telegraph Act. Nonetheless, there are numerous loopholes to such lopsided laws as because these laws are only favourable to individuals that are in power.
Thus, in conclusion it can be observed that the Telegraph Act deals with interference of calls, the IT Act was enacted to deal with scrutiny of all electronic communication, following the Supreme Court’s intervention in 1996 (as mentioned earlier). So, a comprehensive data protection law (as per recommendation of B.N. Srikrishna Committee) to address the gaps in existing frameworks for surveillance is yet to be enacted by our Indian Parliament. This is current need-of-the-hour if we want to protect our democratic values as enshrined in our constitution. The author works as a reporter under the banner of Sattachintan. He is a writer, an avid aquarist, a tech-savvy individual with a will to do something in life.