Every sovereign nation today faces a classic dilemma – and India is no exception. The question is how to balance the requirements of national security on the one hand with protection of civil rights and privacy on the other. Consequently, we find various governments increasingly infringing on private space in the name of national security. This infringement is in no case academically and theoretically justified. National security should not become an excuse to violate enjoyment of personal and civil rights.
Any kind of mass surveillance can adversely affect the personal space and identity of individuals. This becomes all the more significant given the basic structure of the Indian Constitution, which confers on all persons the fundamental right to life under Article 21. The right to life has been interpreted by the Supreme Court to include the right to decent and dignified human life with access to all the amenities which can help enjoy life to the fullest extent possible. This right can only be curtailed in accordance with procedure established by law. Similarly, Article 19 of the Constitution recognises that the fundamental right of freedom of speech and expression is not an absolute right and is subject to certain fundareasonable restrictions under Article 19(2) of the Constitution.
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However, when one peruses the basic structure of the Constitution in conjunction with the special law pertaining to electronic format — the Information Technology Act, 2000 — it is crystal clear that the law is framed in a manner that perceives the phenomenon of interception or monitoring to be undertaken on a case-by-case or specific instance basis. The law does not envisage mass surveillance of the 24×7 kind. That kind of surveillance would engulf within its ambit all kinds of bona fide and law-abiding citizens as well, which can adversely affect the personal space and identity of individuals.
When one looks at the provisions of the Information Technology Act, 2000, one finds that the powers of interception given under Section 69 can only be used if the central or state government feels it necessary or expedient to do so, in the interests of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any offence. The structure of the language excludes the concept of mass , roundthe- clock surveillance of citizens.
If mass surveillance is to be done, legislative mandate is an absolute must, given the scheme of the Constitution of India and Indian cyber laws. Such legislative mandate needs to incorporate within its ambit adequate parameters, with checks and balances stipulated therein to prevent potential misuse of such extensive powers. At the end of the day, sovereign governments need to identify the source of potential security threats and then zero in on suspicious persons. However, national security should not become a handle to flog people’s online freedoms to death.