Tuesday 1 February 2011

Lawful Interception Law In India: Need Of The Hour

Countries world over are using the façade of national security to violate civil liberties and India is no exception. India has no constitutionally sound lawful interception law, say supreme court attorney and techno legal expert Praveen Dalal.

Lawful interception consists of many segments. It includes e-surveillance, phone tapping, eavesdropping, wiretaps, pen registers, etc. As the name suggests, lawful interception must be supported by a law. This is the lay man’s interpretation of the definition of lawful interception.

However, a legal mind should not be confused by this layman’s definition. Any good lawyer would tell you that lawful interception must not only be supported by a law but that law must also pass the tests of constitutionality.

Nations all over the world are enacting laws whose primary purpose is to strengthen unlawful interceptions through the instrumentality of laws. Since this is going to be challenged by people, nations are playing the card of “national security” by creating fear, uncertainty and doubt (FUD factor).

India is no exception to this rule. Under the guise of national security, India is sticking to the same law that it considered draconian before its independence. The Indian Telegraph Act, 1885 is the colonial and draconian law that Indian government in general and home ministry of India in particular uses to indulge in unconstitutional phone tapping.

According to Praveen Dalal, a Supreme Court Lawyer and leading Techno Legal Expert of India, India is the only country of the World where phone tapping is done without a Court Warrant and by Executive Branch of the Constitution of India. Phone tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” in this regard. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.

Not only phone tapping, but even e-surveillance and eavesdropping is not regulated by a constitutionally sound law in India. India urgently needs a Lawful Interception Law, suggests Praveen Dalal. The present Cyber Law of India contained in Information Technology Act, 2000 (IT Act, 2000) is not a Constitutionally Sound Law for Lawful Interceptions in India, opines Dalal.

There is a growing distrust and anger among Indian masses regarding privacy violations and violations of other civil liberties. Further, with projects like Aadhar, national intelligence grid (Natgrid), etc privacy violations and other civil liberty violations are further bound to increase. In the absence of a constitutionally sound lawful interception law in India, only self defence measures can come to the rescue of Indian citizens.

The prime minister’s office (PMO) of India in general and our prime minister Dr. Manmohan Singh in particular must ensure a constitutional sound lawful interception law in India. Further, he must also ensure a good, effective and constitutional cyber law for India as well.