Privacy Rights and Surveillance in the Digital Media Space: Constitutional Concerns, Challenges and Need for Reforms in India

Shaurya Rana
Aug 19, 2023
5 min read

Updated: Mar 22

INTRODUCTION

In an age of rapid technological advancements and increased digital connectivity, the delicate balance between privacy rights and surveillance has become a foremost concern. Recent events, like the Israeli spyware Pegasus incident, have bought the issue of surveillance and privacy into the spotlight in India. It is quintessential to explore the existing legal framework, delve into the constitutional concerns, and emphasize the need for comprehensive reforms to protect an individual’s privacy in the digital media space which this blog attempts to elucidate.

LAWS GOVERNING SURVEILLANCE IN INDIA

Communication surveillance in India operates within the purview of two key legislations: the Telegraph Act of 1885 and the Information Technology Act of 2000.

The Telegraph Act, 1885:

One of the aspects that the Telegraph Act deals with is the interception of calls. The Act authorises the government to intercept calls in specific situations, such as safeguarding the sovereignty and integrity of India, ensuring national security, maintaining friendly relations with foreign states, upholding public order, and preventing incitement to commit offences. These restrictions mirror those which are imposed on free speech under Article 19(2) of the Constitution. Notably, the Act recognizes the importance of protecting journalists from interception, except in some specific circumstances.

The Information Technology Act, 2000:

The IT Act broadens the scope of surveillance by allowing the interception, monitoring, and decryption of digital information for the investigation of offences. Unlike the Telegraph Act, it omits the requirement of a public emergency or interest of public safety for interception. This expansion of powers raises questions about the extent to which digital data can be accessed and monitored.

JUDICIAL INTERPRETATION

Addressing concerns about the lack of procedural safeguards in the Telegraph Act, the Supreme Court of India, in the case of Public Union for Civil Liberties v Union of India (1996), outlined the guidelines for interception. These guidelines paved the way for the introduction of Rule 419A in the Telegraph Rules in 2007 and the rules prescribed under the IT Act in 2009.

Rule 419A mandates that only specific authorized government officials, such as the Secretary to the Government of India in the Ministry of Home Affairs or an equivalent state-level official, can issue orders of interception. This hierarchical structure aims to ensure proper oversight and prevent abuse of surveillance powers.

CONSTITUTIONAL CONCERNS AND CHALLENGES

Constitutional concerns and challenges related to privacy rights and surveillance in the digital media space in India are of paramount importance in ensuring the protection of fundamental rights and democratic values. Here are some constitutional concerns and challenges that can arise:

Right to Privacy (Article 21):

The cornerstone of the debate is the right to privacy enshrined in Article 21 of the Indian Constitution. Surveillance measures must pass the test of reasonability, legality, and proportionality to ensure that they do not infringe upon individuals’ right to privacy guaranteed under Article 21. Any overly broad or unchecked surveillance practices could violate this fundamental right.

Freedom of Speech and Expression (Article 19(1)(a)):

Excessive surveillance has the potential to curtail freedom of expression online. Individuals may refrain from expressing their thoughts or opinions because of the fear of being monitored, thereby undermining the vibrant and diverse digital media landscape that is essential for a healthy democracy. With the latest measures such as the introduction of fact-check units, the government is essentially trying to further control the content that can be posted on various social media platforms. Although social media moderation has been criticised as inadequate and demands have been there to impose liability on social media platforms for the content posted on them by various users, this excessive oversight can severely curtail our fundamental right to freedom and expression and various consequential rights like the right to peacefully protest.

Data Protection and Privacy (Article 21 and Article 19(1)(a)):

The vast amount of personal data collected through surveillance activities raises concerns about data protection and privacy. Individuals have a legitimate expectation that their personal information will be handled responsibly and securely.There have been multiple reports in nations like China where Facial Recognition Technology has been deployed to identify on a real-time basis people walking in the streets on the pretext of preventing crime, when in fact the same has been done to curb peaceful protests from taking place and even monitoring people. Furthermore, no law currently sufficiently protects data or privacy, and even the new Digital Personal Data Protection Bill, 2023 has been criticized for giving overreaching powers to the government and not giving adequate protection

Digital Divide (Article 14):

Surveillance practices may disproportionately affect marginalized communities or individuals with limited access to digital resources. This raises concerns about equal protection under the law and the potential for discriminatory practices enshrined under Article 14

THE NEED FOR COMPREHENSIVE REFORMS

The existing legislative framework attempts to address privacy and surveillance concerns in the digital realm, but extensive adjustments are clearly required to address the current issues. Current issues include the permissible grounds for surveillance, the scope of interception, the granularity of intercepted information, cooperation from service providers, and the retention and destruction of intercepted data. These gaps necessitate the enactment of a comprehensive data protection law that aligns with evolving technological realities, which, unfortunately, the latest Digital Personal Data Protection Bill does not cover.

CONCLUSION

In a time where digital communication has become integral to daily life, the protection of privacy rights stands as a crucial pillar of democracy. Balancing surveillance measures with constitutional safeguards is essential to prevent overreach and abuse of power. The Indian legal system must adapt to the challenges posed by digital media, ensuring that the right to privacy is upheld, and comprehensive regulations are put in place to safeguard individual liberties in the evolving digital landscape. As technology continues to advance, the evolution of legal frameworks will play a pivotal role in maintaining the delicate equilibrium between surveillance and privacy in the digital age.

Telegraph Act, 1885.

Information Technology Act, 2000.

PUCL v. Union of India, (1997) 1 SCC 301.

Telegraph rules, 2007., Rule 419 A.

INDIA CONST., art. 21.

INDIA CONST., art. 19.Cl.1.sub.Cl.a.

Shelal Lodhi Rajput, Choked voices & Indirect curbing on online speech: the continuing crackdown; an insight into battle between regulation and freedom of speech at stake, SCLHR Blogs, (July, 18, 2023), https://sclhrblogs.wordpress.com/2023/07/18/choked-voices-indirect-curbing-on-online-speech-the-continuing-crackdown-an-insight-into-battle-between-regulation-and-freedom-of-speech-at-stake/.