Lawful interception law in India is still missing. We have no constitutionally sound phone tapping and lawful interception law in India. Both Indian Telegraph Act, 1885 and the Information Technology Act, 2000 carries many “unconstitutional provisions” that are openly abused by law enforcement and intelligence agencies of India.
If this is not enough, there is no parliamentary oversight of law enforcement and intelligence agencies of India. Further, law enforcement and intelligence agencies are also not using any procedural safeguards to protect the privacy rights of person in question and data acquired through such interceptions.
This is happening as we have no dedicated privacy laws, data protection laws, data security laws and cyber security laws in India. Further, the law enforcement and intelligence agencies are also not following any sort of cyber security best practices in India to safeguard digital data and information acquired through interceptions. The intelligence infrastructure of India needs a complete overhaul.
If this is not enough, the biometrics details of Indian are collected in an unconstitutional manner. In fact, the Aadhaar project itself is unconstitutional and illegal and Indian government has spent crores of public money on it despite many warnings from experts. Now Aadhaar project has been challenged in many courts around the nation. The cyber security, data security and civil liberties implications of Aadhaar project must not be ignored by Indian government.
The political parties of India are also engaging illegal phone tapping and interceptions by using the services of private individuals. Even the Indian telecom companies used private individuals to do phone tapping.
Both Telegraph Act and IT Act, 2000 need to be repealed and constitutionally sound lawful interception laws need to be enacted by Indian Parliament as soon as possible. Further, human rights protection in cyberspace must also be ensuring by such legislations. The central monitoring system (CMS) project of India must have parliamentary oversight. India must reconcile civil liberties and national security requirements that are presently missing.
Even on the legislation front, India is deliberately postponing enactment of relevant and crucial techno legal laws. For instance, the cell site data location laws in India and privacy issues must be suitably regulated by a new law. Similarly, the cell site location based e-surveillance in India and surveillance of internet traffic in India must also be part and parcel of a new legislation.
For instance, if a provision mandating compulsory cell phone location tracking for all the phones and others is formulated, it would fell afoul of the constitutional and statutory protections in India.
As on date, phone tapping can be done only through the procedure prescribe under the Indian Telegraph Act, 1885. All passive phone tapings that are not authorised under the Telegraph Act are illegal and punishable. It is immaterial whether a law enforcement agency or private person is indulging in such activity as it would remain illegal and punishable for both in such circumstances.
The real problem is that the law enforcement and intelligence agencies of India are not subject to any practical and effective parliamentary oversight. Indian government must not only make them accountable to the parliament but also formulate new laws keeping in mind the contemporary requirements. The Telegraph Act has long served its purpose and it deserves a complete rejuvenation.
Fortunately, privacy rights issue is pending before the Supreme Court of India due to leakage of tapped conversation between Ratan Tata and Nira Radia. The Supreme Court of India must expand privacy rights in India as that is the need of hour. The Supreme Court of India has also warned that privacy violations may also pose national security problems in India.