Right Of Interception Under IT Act 2000

Introduction

“When people fear surveillance, whether it exists or not they grow afraid to speak government or to anyone else.”[1]

– Mr. Same Ervin, US Senator.

As per the Merriam-Webster dictionary, the meaning of the term surveillance is ‘keeping a close watch on somebody or someone or something‘. In context of contemporary legal world, the word ‘surveillance’ means the closure look of the government on its citizens. Here the government mainly concentrates on telecommunications mediums like telephone and internet through various authorities.

In the Indian context, surveillance is legal, not in every circumstance but depending on different state of affairs. Some legal frameworks provide authorities to the government to comportment surveillance.

From the above-mentioned classification, it is very clear that section 69 of the IT Act,2000 deals with the right of interception. In this paper, we are going to deliberate the concept of the right of interception in details in Indian context as well as the fashionable issues relating to the right to interception under IT Act,2000.

Issues

The main issue related to Section 69 of the IT ACT, 2000- whether it can maintain a balance between the right to freedom of speech and expression and the right to privacy?

Right of Interception in India

Section-69[2]

As per section 69, of IT Act, 2000, the central and state government have been empowered to intercept, monitor or decryption of any information through any computer resources. Here the government can do the same only in these under mentioned grounds.

• National interest,
• In the interest of sovereignty or integrity of India,
• Defence of India,
• Security of state,
• Friendly relations with foreign state, Public order
• Prevention commission of any cognizable offence or
• Investigation purposes.

Both the government have the power to utilize such a framework in case of public order, preventing someone from any type of cognizable offenses or for investigation of such offenses. Meaning here by the intermediaries is bound to render all authorization to the intercepting agencies. The intercepting agencies have the legal authority to access any suspect computer, monitoring and collecting data, or intercepting to share or use of that computer.[3]

Section 69A [4]

As per section 69 A of IT Act,2000, the government and the authorized agencies have the power to block certain websites where the content of such a website is objectionable. This process should be justified by reasonable grounds which has been mentioned in section 69 of the IT act. These provisions should not the violative of the fundamental rights which are guaranteed by the Indian constitution.

Section 69-B

This section prescribed provisions for the central government to monitor any computer or collection data or information from it.[5]

Rule Passed Under IT Act, 2000 on Interception

The IT rule,2009 was passed to maintain a check and balance and make an appropriate process of interception. As the right to privacy is one of the fundamental rights guaranteed to every citizen, sustaining the use of the interception need prior approval from the legal authority. In such circumstances the ministry of Home affairs consideration the authority, if the matter associated to the central government. Similarly, the secretary in charge of Home department is the competent authority in the state matters.60days is the maximum time of interception and can be exceeded to 180 days in some special cases.[6]

Rule-21[7]

As per rule 21 of the IT rule, 2009, the intermediaries must maintain the privacy and secrecy of intercepted communication.

Rule -25 [8]

The interception cannot be disclosed except for the officer who has authorization. The authorized offer can only use such information for specific uses.

Rule -23[9]

Intercepted communication should be destroyed if it is not useful for the enforcement of the law. In case of illegal and unauthorized use of the intercepted communication, the intermediaries can be punished under rule 5,6 and 11 IT Act,2009

Present Situation in India Related to Right to Interception-

Recently the government has authorized 10 intelligence agencies to intercept, monitor, and decrypt any information from any computer under section 69 of the information technology act,2000. Those agencies include

• Intelligence Bureau
• National Investigation Agency,
• Narcotics Control Bureau,
• Cabinet Secretariat (RAW)
• Enforcement Directorate
• Directorate of Signal Intelligence
• Directorate of Revenue Intelligence
• Central Bureau of Investigation
• Central Board of Direct Taxes
• Commissioner of Police, Delhi.

Criticism-

This concept was debated in different places. Some people criticize this concept as it will be challenged to the 2017 K.S. Puttaswamy judgment (right to privacy). It was also argued that such a concept can convert a state to a surveillance state.[10]

Right to Privacy and Surveillance-

In this present world of globalization, there is a sensitive issue relating to surveillance. Whether the Indian laws related to surveillance is a threat to the right to privacy of its citizen[11]. This issue has been debated on different platforms. Up to the matter of national interest, it is acceptable but somehow it is clear that the right to privacy is not absolute. In such a situation, the state is obliged to proceed with its interception if it has tangible evidence or reasonable grounds for enforcement of such sections. In the U.S scenario, without appropriate evidence the hon’ble court may declare the interception and surveillance as arbitrary. [12]

Right of Freedom of Speech of Expression and Right of Interception-

The meaning of interception is preventing someone from doing something. This is also the same situation as the right to privacy. Every citizen has given the right to freedom of speech and expression under Article 19 of the Indian constitution. Under the reasonable ground of restriction, the state or intermediaries’ agencies can intercept a person as it is in the national interest. Similarly. If the same will happen illegally or arbitrarily, then it will be violative of Article 19 of the Indian constitution.[13]

Remedies Available to The Person Who Has Been Intercepted Illegally

Always judiciary stands as the last way for providing effective remedies for illegal surveillance and an unlawful interception. All these unlawful activities are violative of articles 43 and 66 of the Information Technology Act,2000.

Section43-

This section of the IT act,2000 provides the penalties to any person who causes damages to a computing system. Here in this case the actor is bound to pay compensation to the affected person. [14]

Section-66-

If any person is doing any offense dishonestly mentioned in section 43 of the IT act,200 then that person can be punished for imprisonment for a extreme period of 3 years and compensation up to 5 lakhs rupees.[15]

Forums for Securing Remedies

A citizen can approach different forums if the right of interception will be violated by any authority on illegal grounds.

SUGGESTIONS

From the above-mentioned content, it is very clear that the right to surveillance is violative of the right to privacy no matter it is justifiable or not. It is the vital role of the government to make a balance between the right of interception and surveillance concerning the right of privacy. Maintaining country’s interest is also that much imperative. Some of the parameters are mentioned below.

JUDICIAL REVIEW— The agencies should be recognized by the parliament. Every surveillance must be going before a judicial authority. It is because a judge can apply his/her legal mind and the test of proportionality can be successful.

PROPER CAUSE– The judicial review is not enough to eradicate the issue relating to the law of interception. So, every request of surveillance should provide a mandatory cause of suspicion.

APPOINTMENT OF LAWTER- To make the process efficacious, it is very important to appoint a lawyer on behalf of the target of surveillance.

CONCLUSION-

To conclude, the government is obliged to make a comprehensive reform of the surveillance framework in India. In this contemporary world, the debate is at the peak point in maintaining a balance between the surveillance and the right of interception with regards to the right to privacy. A simple violation of personal rights can make the state a surveillance state. When the matter evolves vis-à-vis the national interest, up to that extent it is acceptable. sometimes wrong surveillance destroys the fundamental right of the citizens, intercept person toward the digital liberties and right to privacy. The government should take initiative to protect both the sovereignty of the country as well as the fundamental right of its citizen.

References

[1][1]* Given By- Same Ervin, US Senator. [2] Section 69 of the IT act,2000 [3]Author(s): Sruti ChagantiSource Information Technology Act: Danger of Violation of Civil Rights: Economic and Political Weekly. 2003; 38(34):3587-3595. Stable Available at-: http://www.jstor.org/stable/4413940 ac [4] Section 69Aof the IT act,2000 [5] Section 69B of IT act,2000. [6] Ashok Kumar Kasaudhan , “Surveillance and right to privacy: Issues and challenges” International Journal of Law Volume 3; Issue 2; March 2017; Page No. 73-81 [7] Information Technology (Procedure and Safeguards for Interception, Monitoring; and Decryption of Information) Rules, 2009 rule-21 [8] IT Rules,2009-Rule-25 [9] IT Rules,2009-Rule-23 [10] Justice k.s. Puttaswamy vs. Union of India (2017) 10 SCC 1 [11] INDIAN CONST-art21 [12] Kanika Seth, Are Indian’s Laws on surveillance a threat to privacy? The Hindu, 28th December .2018 page no-7 [13] Ashok Kumar Kasaudhan , “Surveillance and right to privacy: Issues and challenges” International Journal of Law Volume 3; Issue 2; March 2017; Page No. 78 [14] Section 43 of IT act,2000 [15] Section 66 of IT act,2000

Author- Ashutosh Nath, Symbiosis law school, Hyderabad