NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

3rd Semester PAPER: ELECTRONIC SURVEILLANCE & LEGAL ISSUES PROJECT ON LAW RELATING TO E-SURVEILLANCE

A COMPARATIVE STUDY OF US, UK & INDIA

Submitted toAsst. Prof. Atul pandey

Submitted byVignesh Iyer Rishu kansaliwal MS-03, MS-08

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As we know constitution of India provide some rights and duties, but the rights are not absolute and some of that for Indian citizen and some for Indian peoples who is residing in India. In the same context all laws dealing with mediums of inter-personal communication post, telegraph and telephony and email contain similarly worded provisions permitting interception under specified conditions. Thus, section 26 of the India Post Office Act 1898 confers powers of interception of postal articles for the public good. According to this section, this power may be invoked On the occurrence of any public emergency, or in the interest of the public safety or tranquility. The section further clarifies that a certificate from the State or Central Government would be conclusive proof as to the existence of a public emergency or interest of public safety or tranquility. As Section 5(2) of the Telegraph Act indicates, it is in the event of occurrence of any public emergency, or in the interest of the public safety that the Central Government or the State Government or any officer specially authorized in this behalf, can intercept messages, if satisfied that it is necessary or expedient to do so in the interest of (i)The sovereignty and integrity of India, (ii)The security of the State, (iii)Friendly relations with foreign States, (iv)Public order, or (v) For preventing incitement to the commission of an offence. The Supreme Court after examining its earlier decisions and decisions of foreign Courts which have been referred to above held that 'right to privacy' was a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution and the said right cannot be curtailed "except according to procedure established by law". However, it was also pointed out that though the right to privacy had not been identified under the Constitution but the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". It is in this context that it was observed: "Conversations on the telephone are often of an intimate and confidential character, Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone1|Page

conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law." In that context Supreme Court found that there was no procedure provided for in the Act for the exercise of power to be fair and reasonable and Rules had also not been framed by the Central Government for providing precautions to be taken for preventing improper interceptions or disclosure of messages even though they could be framed under Section 7(2) (b) of the Telegraph Act. In the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Telegraph Act, it was not possible to safeguard the rights guaranteed under Articles 19(1) (a) and 21 of the Constitution. In such circumstances, in order to rule out arbitrariness in the exercise of power under Section 5(2) of the Telegraph Act, the Supreme Court laid down the procedural safeguards so that the 'right of privacy' could be protected till such time as the Rules were framed by the Central Government. The salient features of the directions issued by the Supreme Court are as follows: (a) An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home-Secretary, Government of India (central government) and Home Secretaries of the State Governments. (b) The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means. (c) The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. (d) The authority which issued the order shall maintain the following records: (i) The intercepted communications, (ii) The extent to which the material is disclosed, (iii) The number of persons and their identity to whom any of the material is disclosed. (iv) The extent to which the material is copied, and (v) The number of copies made of any of the material. (e) There shall be a Review Committee which on its own,

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The Central Government added Rule 419-A to the Indian Telegraph Rules 1951 (hereinafter referred to as the "Telegraph Rules") which was published in the Gazette of India dated 19th February, 1999. The Rules provide for procedural safeguards on the same pattern as was directed by the Supreme Court. PUCL v. Union of India AIR 1997 SC 568 In short, the Rule provides that directions of interception of any message shall not be issued except by an order made by the Secretary to the Government of India and by the Secretary to the State Government and that directions shall be issued only when it is not possible to acquire the information by any other reasonable means. The Rules further provide that the directions for interception shall remain in force, unless revoked earlier, for a period not exceeding 90 days from the date of issue and may be reviewed but shall not remain in force beyond a total period of 180 days. A high powered Review Committee was also required to be formed by the Central Government as also the State Government which, within a period of 60 days from the issue of the directions, was required to suo moto make necessary inquiries and investigations and record its findings whether the directions issued were in accordance with the provisions of Section 5(2) of the Telegraph Act and if it came to the conclusion that they were not in accordance with the said provisions, then it could set aside the directions and order for destruction of the copy of the intercepted messages. In the context of telephone tapping will we be able to use the Right to Information Act, 2005? Negative by the Maharashtra State Information Commission stating that, a person is not entitled to receive information as to whether his telephone has been tapped or not by the Government machinery and the reasons thereof, if he files an application under the Right to Information Act. 1 The State Information Commission during the hearing, referred to the Supreme Court's order in People's Union for Civil Liberties (PUCL) v. Union of India case. The order said, "Thus, it is clear beyond doubt that telephone tapping is a secret affair carried out in the interest of the sovereignty and integrity of the country. The appellate officer has rightly turned down the contention and the appeal is dismissed."

http://www.airinfotech.in/article2.html

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