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India: Section 69 of the Information Technology (Amendment) Act 2008 Violates The Constitution

5 February 2009

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Indian Express, February 6, 2009

Yes, snooping’s allowed

Some recent commentary on the amendments to the Information Technology Act has claimed that the amendments are little different from powers already with the state in the Indian Telegraph Act of 1885, and thus civil-liberties concerns are mistaken. This is not correct. Section 69 of the Information Technology (Amendment) Act 2008, passed by Parliament on December 23, 2008, is far more intrusive than the Indian Telegraph Act of 1885, which was drafted to protect the interests of the British Raj. Under the new IT Act, any Government official or policeman will be able to listen in to all your phone calls, read your SMSs and emails, and monitor the websites you visit. And he will not require any warrant from a magistrate to do so.

Until the passage of the amended IT Act, phone tapping was governed by Clause 5(2) of the Indian Telegraph Act of 1885, which said that “On the occurrence of any public emergency, or in the interest of the public safety, the 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 offence, 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”. Other sections of the act mention that the government should formulate “precautions to be taken for preventing the improper interception or disclosure of messages”. Many calls have been made, both inside and outside Parliament, to formulate rules to govern the operation of Clause 5(2). But ever since 1885, no government has formulated any such precautions, since all governments have wanted to retain the right to spy on their opponents unfettered.

A writ petition was filed in the Supreme Court in 1991 by the People’s Union for Civil Liberties, challenging the constitutional validity of Clause 5(2). The petition argued that it infringed the constitutional right to freedom of speech and expression and to life and personal liberty.

In December 1996, the Supreme Court delivered its judgment: it pointed out that “unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers” given them under 5(2). They went on to define them thus: a public emergency was the “prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”, and public safety “means the state or condition of freedom from danger or risk for the people at large”. Without those two, however “necessary or expedient”, it could not do so.

But Section 69 of the amended IT Act drops all references to public emergency or public safety, meaning that the government’s powers have been vastly extended.

The earlier IT Act of 2000 mentioned only decryption of messages; interception and monitoring were not mentioned at all. Section 69 of the new IT Act enhances the scope from the 2000 version to include interception and monitoring. It also broadens the scope of surveillance to include the investigation of any offence, whether cognisable or not.

In view of the many incidents of tapping of the phones of politicians, the Supreme Court in the PUCL case laid out procedures and guidelines to protect citizens against the arbitrary exercise of power by the government. But this judgement as well as the relevant sections of the Telegraph Act have become infructuous with the passage of the amended IT Act, since the latter has overriding effect.

And what of the safeguards in the act? Well, when the Government has not formulated any safeguards to Section 5 of the Telegraph Act since Independence, it is unrealistic to expect it to formulate any safeguards under Section 69 (2) of the amended IT Act — especially in view of the prevailing terrorism situation.

Until suitable safeguards are in place, Section 69 of the Information Technology (Amendment) Act of 2008 appears to be in violation of Article 21 of the Constitution — “no person shall be deprived of his life or personal liberty except according to procedure established by law.” It is unfortunate that a democratic and independent India has passed a law which is far more detrimental to personal liberty than the British Raj did.

The writer heads an infotech firm in Delhi

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