Surveillance Circular: SC issues notice in PUCL challenge to Telegraph Act, IT Act provisions

The Supreme Court on Friday issued notice in a petition filed by People’s Union for Civil Liberties (PUCL) challenging provisions of the Telegraph Act and Rules and the Information Technology Act and Rules, which enabled the Central government’s introduction of its December 2018 circular legitimizing electronic surveillance by ten government agencies..The Bench of Chief Justice of India Ranjan Gogoi and Justice Sanjiv Khanna issued notice in the matter, and directed that it be tagged along with ML Sharma’s petition challenging the surveillance circular..In particular, the petition brought by PUCL challenges the Constitutional validity of Section 5 (2) of the Indian Telegraph Act, 1885 read with Rule 419A of the Indian Telegraph Rules, 1951, in addition to Section 69 of the Information Technology Act, 2000, read with the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009..As per a press release issued by PUCL, the petitioner has relied on RTI data to submit that around 7500-9000 orders for interception of phone calls and upto 500 orders for interception of emails are passed every month, “indicating the rampant and indiscriminate use of surveillance powers.”.Inter alia, PUCL also points out that the Supreme Court in 1997 had dispensed with PUCL’s plea against telephone tapping merely by directing the formulation of guidelines on the ground that there was no Indian law permitting judicial oversight at the time..However, the legal scenario has since undergone a shift, more so with the Supreme Court upholding the right to privacy as a fundamental right in the Puttaswamy case. Following this judgment, PUCL highlights that a triple test is applicable, i.e. restrictions on right to privacy ought to be tested on legality (existence of the law), need for the law (legitimate state aim), and proportionality (a rational nexus between the object and the means adopted to achieve it)..In this backdrop, the PUCL has challenged the surveillance powers of the state enabled by the Telegraph and IT laws, arguing that the same would require further safeguards as well as judicial oversight..Advocate Sanjay Parikh appeared for PUCL in the matter, along with Advocates Pukharambam Ramesh Kumar, Apar Gupta, Prasanna S, Ritwik Parikh and Sanjana Srikumar..The Court had issued notice in Sharma’s petition earlier this month. A similar challenge is also pending before the Allahabad High Court..The order passed by the Union Ministry of Home Affairs was issued under Section 69(1) of the IT Act to the following agencies: the Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence, Central Bureau of Investigation; National Investigation Agency, Cabinet Secretariat (R&AW), Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only) and Commissioner of Police, Delhi..According to the order, the subscriber or service provider or any person in charge of the computer resource will be bound to extend all facilities and technical assistance to the agencies and failing to do will invite seven-year imprisonment and fine..Read the order: