Surveillance means monitoring, collecting or intercepting data of the individual by a third person. With advancement in technology and increased number of telecommunication and internet users in India we are more prone to share our personal and confidential data via the aforementioned ways of communication but we do not know that a third person or an interceptor can collect and monitor our data.

For avoiding this situation India have previously enacted legislations on surveillance of a call or website. Surveillance in its strictest sense can also be proved very helpful in monitoring national security and criminal offences, in context of this there are certain authorities and departments which are allowed to monitor and intercept the data of another person but also the reasons should be substantially similar to that provided in the clauses of the legislations.

In India surveillance issues are monitored by two legislations at present, the first is The Telegraph Act, 1885 which majorly deals with interception of calls and prohibits third person from interception of calls and also provides authority and justified reasons for doing so.

Another legislation relating to surveillance is Information Technology, 2000 also known as the IT act of 2000. This legislation deals with surveillance of electronic communication and provides necessary regulations and guidelines regarding to it.

Surveillance is being talk of the town due to contemporary issues like Peagasus which allegedly traced data of various high profile Indian individuals. This has made government to rethink on its policies regarding surveillance and to avoid such happenings in future. Illegal surveillance is also a very serious threat to the privacy of the individual which is per Supreme court's observation a fundamental right of an Indian citizen.

Threat to privacy is implied threat to the fundamental rights of the netizens provided in the Constitution of India. In furtherance to the same central government is also in process of making a more regulatory and redefined legislation which deal with the cyber issues and protection of data of an individual. It also sought establishment of Data Protection Authority which will entertain issues relating to protection of data and hence the privacy.

In context of aforementioned issues it is also necessary to consider and acknowledge the perspectives various other countries and try to find out the possible methods to tackle the third party data interception. It is also necessary to look at the perspective of honourable Supreme court of India and various directions and observations made by the court.

Historical Background
There had been innumerous illegal surveillance instances in India majorly in the Indian politics. Some famous snooping cases includes-

In 1998 the then chief minister of Karnataka Ramakrishna Hegde resigned following a telephone tapping scandal. He stepped down on moral grounds after details emerged of wire- taps on 50 individuals including journalists and decidents within the Janta party. Subsequently, the authorization given to the state police for tapping too was made public.

Not only this but illegal surveillance has also led to fall of the government when in march 1991 tow Haryana policemen were arrested for snooping outside Rajiv Gandhi's residence which led to the resignation of the then prime minister Chandrashekhar. Furious over the alleged snooping, Rajiv Gandhi decided not to back Chandrashekhar during the confidence motion. Another major issue of illegal surveillance was the famous Tata Tapes. The Tata tapes was the first instance of the leak of the large volume of intercepted conversations the tapes dealt with conversations of industrialists Nusli Wadia, Ratan Tata and Keshub Mahindra.

The illegal wiretaps published by The Indian express showed Tata's attempts to get the centre to intercede in a matter in which the United Liberation Front of Assam (ULFA) was extorting money from tea states, including those owned by Tatas. Then Prime Minister I K Gujral ordered a CBI inquiry into the audio tape leaks but shortly thereafter the enquiry was closed for want of evidence.

More than a decade after the Tata tapes hundreds of conversations of corporate lobbyist Nira Radia were leaked in 2008. Conversations of Radia with leading politicians, industrialists and journalists were recorded by the income tax department over a period of 300 days between 2007 to 2009 in connection with the 2G telecom scam. One of the industrialists whom Radia spoke to was Ratan Tata, following the release of these tapes Tata went to court seeking a restraint on the media from carrying any more such tapes.

Illegal surveillance has been a reoccurring issue in the Indian history and a most recent Peagasus virus has questioned the existing legislation on surveillance in India and also once again realised the need of a modified and more strict legislation regarding to it. Illegal surveillance has proved to be a serious threat to e-communication and also endangering the security of an individuals privacy. Along with privacy of individuals it can also be a threat to national security and a more strict legislation in relation to it.

International Perspective:
The regulation of surveillance is a tough area and there are various laws and bodies setup by different developed nations which might be having persuasive value in Indian context.

The Major Countries And Their Regulations On Surveillance Are:

• United Kingdom:
  The UK govt has enacted various legislations in regard to regulation of surveillance, out of which a few major legislations are:
  
  1. European convention on human rights (ECHS):
     It provides fundamental rights and freedom of the citizen which a current government must ensure. Article 8 of this convention provides right to respect to private and family life, his home and correspondence.
      
  2. Intelligence Services Act 1994 (ISA):
     It makes provisions for issue of authorisation and warrants enabling intelligence services to take against interception of wireless telegraphy.
      
  3. Part 3 Police Act 1997:
     It provides requirements and reasons to authorise interference in person's property and privacy.
      
  4. Data Protection Act 2018:
     It regulates processing of personal data. It provides regulation of good information handling with which organisations must comply.
      
  5. General Data Protection Regulation (GDPR):
     The GDPR is Europe wide law that applies to use of personal information.
      
• Russia:
  The constitution of Russia provides that each person has right to privacy and personal and family secrets and everyone has right to keep their communications secret and its restriction is only subjected to court decision. Collection, storage and use of one's personal data can only be done with the person's consent.
  
  In 2007 Russia adopted The Personal Data Law, it was a major law regarding data privacy issues. It ensures all types of data protection and it also clarify that what type of data is called private data, what type of data can be collected and also authorizes that which agencies can collect the data with the consent of the person concerned.
  
  In may 2014 Russia enacted the Yarovaya Law which controlled Russian telecom and internet industries. It stated that all the telecom companies have to store all the voice and text messages for six months and provide the required data on the request of the police.
   
• Australia:
  Australian government has also made certain legislations in order keep an eye on interception and surveillance these are Telecommunications (interception and access) act 1979 it provides a number of provisions that deals with personal data its interception and storage and provide grounds and conditions in which a person's data could be intercepted.
  
  Another such legislation is Surveillance devices act of 2004 it is an act of law in the commonwealth of Australia. This act includes powers which support commonwealth investigations in limited range of offences.

These were the legislations of few countries however many more other countries has passed certain act or legislation in regard to the surveillance. Overall we can see that international perspective also indicates that a personal data of an individual of their country have all the rights to keep their communications private and any type of surveillance or collection of such data can lead to infringement of their right to privacy, however surveillance is also termed as very useful and helpful tool which when used in bona fide manner can help in detection of threat to the national security , integrity of country and many nations use it for surveillance of criminals which help concerned officials in detaining them.

Indian Perspective
Surveillance in India is a one of a very recent issues when a spyware called Peagasus allegedly collected data of around 300 individuals without their consent and it has made government to rethink their laws and policies regarding surveillance as there are currently two major legislations which deals with the surveillance in India and these are:

1. The Telegraph Act 1885:

   The Telegraph act of 1885 deals majorly with the interception of calls. It is an legislation which governs the use of wired and wireless telegraphy, radio, digital data communications. Its gives jurisdiction to government of India to establish, maintain, operate and oversight of all types of wired or wireless communications within the territory of India. It also provide authorization to government law enforcing agencies to intercept communication and tapping of phone lines under the conditions defined in the constitution of India.
   
   This legislation deals with interception of calls and the main section which governs it is Section 5(2) of the Telegraph act which states that in case any public emergency or in the view of safety of public, or in the interest of public the central or state government or any other official on behalf of the central or state government is satisfied that in the sovereignity and integrity of India, security of country or to prevent any offence it is necessary to do so then by the reasons to be recorded in writing that message or any class of messages to or from any person received by any telegraph shall not be transmitted, intercepted or detained or shall be disclosed to government.
   
   So under this law the government can intercept calls in certain situations like for sovereignity and integrity of country and other which is same as the restrictions imposed on free speech under Article 19(2) of the constitution of India.
   
   Apart from the aforementioned conditions it is also stated that even this lawful interception can not be done against journalists.
    

2. Information Technology Act, 2000:

   This act is commonly known as IT Act, 2000. It primarily deals with cybercrime and electronic commerce. This legislation was framed to provide legal recognition to transactions carried out by means of electronic communication and storage of information. It deals with crimes which involves a computer or network located in India.
   
   In context of surveillance section 69 of the Information Technology Act and the Information Technology (procedure for safeguards for Interception, monitoring and Decryption of Information) rules, 2009 were enacted which furthered the legal framework for electronic surveillance. Under this act all electronic transmission of data can be intercepted. Apart from the restrictions provided in the Telegraph act and article 19(2) of constitution , the section 69 of IT act makes surveillance broader that is surveillance can also be used for the investigation of an offence.

Apart from these two enabling legislations the government of India had introduced a bill named as The Personal Data Protection Bill, 2019. The bill seeks to provide for protection of personal data of individuals and establishes a data protection authority for the same. This bill proposes processing of personal data by government, companies Incorporated in India, and foreign companies dealing with personal data of individuals in India. Personal data is that type of data which when processed or decrypted can turn out the identity or recognition of an individual.

However, at present this bill is being analysed by a Joint Parliamentary Committe and as per the recent observations the experts are seeking that Data protection bill is loaded in the favour of the government and it is taking focus away from individual privacy. The Joint parliamentary committee has adopted its report after two years of long discussion, and in this report they have suggested various modifications and improvement including the suggestion of changing its name to 'Data Protection Bill' dropping the word 'personal'. The report recommends that same regulator should govern both personal and non- personal data.

Now the report of Joint Parliamentary Committee will be tabled in the Parliament in the upcoming winter session and only time will tell that if passed in Parliament this bill can bear good results or not.

India being a developing country needs more regulations and restrictions which can safeguard the privacy of individuals and secure them from any type of illegal surveillance.

Judicial Approach
The Supreme Court of India in many cases discussed about the unauthorized surveillance and how it is violative of the fundamental rights of the citizens. Some important observations of supreme court are-

In Public Union for Civil Liberties (PUCL) vs. Union of India [1] supreme court observed that there is a lack of procedural safeguards in the sections of Telegraph act and laid down certain guidelines for interception of calls. Further supreme court noted that the concerned authorities fails to keep the records and logs of the interception. The court said that Tapping is a serious invasion of individuals privacy and it is the duty of the government to protect the citizen's right to privacy which is being abused by the authorities.

In the most recent case of Manohar Lal Sharma vs. Union Of India and Ors.[2] Which was based on the Peagasus spyware which allegedly intercepted and monitored the data of around 300 people in India, SC observed that:
Members of the civilised democratic society have a reasonable expectation of privacy and every citizen of India ought to be protected against violation of privacy and by referring to the famous K.S Puttaswamy v. Union of India [3] in which supreme court had held that:
Privacy is a constitutionally protected right and emerges as a fundamental right under Article 21 of the constitution and any law which encroaches upon the privacy of the individual must meet the requirements for restriction of fundamental rights mentioned under the constitution. By this supreme court clearly stated that any type of violation in the privacy of an individual like unauthorized or unreasonable surveillance must cease to exist.

In the context of illegal surveillance of various journalists and press members Supreme Court in Anuradha Bhasin vs. Union of India [4] held that Journalists are to be accommodated in reporting and there is no justification in allowing a sword of Damocles to hang over the press indefinitely.

Supreme court has observed that state has right to deny the certain information if they fall under the reasonable restrictions of Article 19 clause 2 but other than this if state try to encroach a fundamental right of a citizen then this can not be accepted and suggested that Union of India should not be in adversial position when fundamental right of the citizens is in threat[5].

So from these few cases discussed, it is evident that Supreme court is of opine that illegal surveillance is undoubtedly a threat to right to privacy and at various point in time suggested the government of India not to encroach upon the fundamental rights of the citizen unless it is reasonable and bona fide according to Article 19(2) of the constitution of India, and also that if in case surveillance seems to be an reasonable option then concerned authorities must keep an record and logs of the data adequately so that the fundamental rights of citizen are not at par.

Conclusion
Surveillance is a useful tool for maintaining harmony and for security of the country but if done by third party or unauthorized people can create a lot of difficulties for people at large and may also affect the well being of the nation for example in the aforementioned illegal tape cases it can be seen that how the people which were targeted were very important for the country and illegal monitoring or snooping may result in a challenge for national security and integrity.

So in the context of this the need of the hour is that government should become more strict for the data protection and protection of rights of the citizen of the country. It can be observed through the Peagasus case that even government sometimes due to political interests end up violating the fundamental rights of the people and do the unreasonable things then how about the third party or a person doing so.

It is evident that new statues need to be enacted in order to impose more reasonable restrictions on the illegal surveillance and collection of data. It can be concluded that we still do not have any authority for protection of data and for checking on those who illegally obtains and store the personal and non- personal data of individuals. In other nations there are various legislations which gives the power of keeping data of people to the government like those in Russia which can result in decreased transparency and increased violation of one's legal rights.

Hence, we need more broad and comprehensive legislation in our country as India have a large population and number of digitally active people is increasing day by day so this is the duty of government to ensure people that data shared by them is safe and secure and no third party have access to it.

Bibliography:

• PRS Legislative Research. 2021. The Personal Data Protection Bill, 2019. [online] Available at: [Accessed 22 November 2021].
• Assets.publishing.service.gov.uk. 2021. [online] Available at: [Accessed 22 November 2021].
• Thelawreviews.co.uk. 2021. The Law Reviews - The Privacy, Data Protection and Cybersecurity Law Review. [online] Available at: [Accessed 22 November 2021].
• Sharma, D., Sharma, D. and Sharma, D., 2021. Australia | New surveillance law allows government to quietly modify your social media posts in Australia | SCC Blog. [online] SCC Blog. Available at: [Accessed 22 November 2021].
• The Indian Express. 2021. Explained: The laws for surveillance in India, and concerns over privacy. [online] Available at: [Accessed 22 November 2021].
   

End-Notes:

1. PUCL vs. Union of India MANU/SC/0149/1997
2. Manohar Lal Sharma vs. UOI and Ors. MANU/SC/0989/2021
3. K.S Puttaswamy v. Union Of India MANU/SC/1044/2017
4. Anuradha Bhasin v. Union of India MANU/SC/0022/2020
5. Ram Jethmalani v. Union of India MANU/SC/0711/2011
   

Award Winning Article Is Written By: Mr.Abhishek Yadav

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