The Indian state has been accused of conducting surveillance on politicians, activists and journalists. The ‘Pegasus scandal’ has rocked Parliament, triggered public furore and vindicated recent concerns about the Indian state accessing its citizens’ private correspondence and data.
The Indian Telegraph Act 1885 and the Information Technology Act 2000 (including the Rules) allow government agencies to intercept private conversations on the grounds of public safety, public emergency and investigation of offences. The 1885 Act as the name suggests has its origins in the British colonial regime. The British had put in place a comprehensive surveillance architecture to counter Indian national movements and other anti-colonial activities. Indian political leaders were closely tracked, and their correspondence was often intercepted.
The 1885 law was the successor of three regulatory laws on telegraphs – which employed more intrusive provisions and is still in force today. Section 5(2) of the 1885 Act authorizes the Government to intercept, detain and stop the transmission of a telegraph message on grounds of public emergency and public safety. The grounds for intercepting and controlling communication has been expanded by successive Indian governments after India’s independence.
While leaders like Gandhi believed that ‘secrecy was a sin’, most Indian leaders predictably offered pushback against British snooping activities. Some Indians who were penning down their constitutional visions for India engaged with privacy. M.N. Roy’s Constitution of Free India: A Draft prepared in 1944 contained the right to privacy which covered private correspondence. Ambedkar in States and Minorities Report included 'the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures'.
During the committee stages of the Constituent Assembly discussions, KM Munshi on 17 March 1947 proposed that the right to secrecy of one’s correspondence should be a fundamental right. In April 1947, a Draft Report of the Sub-Committee on Fundamental Rights included a right to secrecy of correspondence. This was borrowed from the Weimar Constitution and also had an exception where the government could enact a law to regulate the interception of messages in case of a public emergency or in the interests of public safety and tranquillity. This was reiterated in the Assembly on 30 April 1947 by Somnath Lahiri who also advocated to make the right to privacy of correspondence a fundamental right.
However, these efforts did not bear fruit. BN Rau and Alladi Krishnaswamy Ayyar, vehemently opposed the inclusion of the right to privacy as a fundamental right. Ayyar believed that granting the right to privacy and secrecy in correspondence would be disastrous as it would affect evidence gathering in civil litigation proceedings. And so, the Constitution of India adopted in 1950 did not include the right to privacy.
However, after a series of cases, the Supreme Court in a landmark judgement declared that Indians had a right to privacy and this right was inherent in Article 21 of the Constitution (2017). We will have to see how this declaration of a right to privacy by the Supreme Court plays out in Court cases related to the State’s invasion of privacy like the recent Pegasus petitions.
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