[Abstract] The Supreme Court of India will soon deliver its judgment in the case of Ratan Tata v. Union of India that examines important issues of free speech and privacy. The case deals with the interception of telephone conversations over several years, the ‘leak’ of those confidential telephone conversations to reveal large-scale impropriety and corroboratory evidence of wholesale corruption, and the publishing of such information by the press. In these series of posts, I will examine: (a) the free speech right of the press to publish confidential information in the larger public interest; (b) the right of the public to know of corrupt and illegal activities versus the duty of confidentiality and official secrecy; and, (c) the breach of the statutory or tortious duty of confidentiality in respect of taped conversations. This first post looks at the background, facts of the case, and legal issues.
This is a brief introduction to the law of privacy and communications surveillance in India, at a National Roundtable on Privacy and Surveillance at the India International Centre in New Delhi on 4th July 2014. The Roundtable was convened to discuss proposals to reform existing laws relating to the interception of communications in India. Current […]
Abstract: India’s federal polity demands caution from those proposing surveillance law. Because the States are solely empowered to regulate law and order and the police, Union surveillance law must be careful not to exceed its bounds. However, in the Bharat Shah case, the Supreme Court disturbed this constitutional scheme. In any event, any law that seeks to regulate interceptions of communications must obey three principles: (i) the interception must be properly authorised, (ii) the interception must be based on ‘probable cause’, and (iii) the interception warrant must be strictly construed.
Abstract: At the end of his latest movie, Superman flings down a surveillance drone. “You can’t control me,” he tells his military minder. This exchange goes to the crux of surveillance: control. Surveillance is the means by which nation-states exercise control over people. The USA and other western democracies have installed a comprehensive apparatus of surveillance, but these are accompanied by strong privacy laws and sophisticated criminal procedure. India seeks to replicate this without privacy laws, a reliable criminal justice system, or even technical know-how. For ordinary Indians whose privacy is besieged from abroad and within, the law offers no solace.
Abstract: The Central Monitoring System (CMS) is a project to automate wiretaps in India, which are currently conducted by private carriers. It is being undertaken without first resolving the potential invalidity of its parent statute. India’s wiretaps regime is set out in section 5(2) of the Telegraph Act and rule 419A of the Telegraph Rules. In 1996, in the first constitutional challenge to wiretaps, the Supreme Court found the wiretap provisions too invasive and prescribed fresh procedure. In 1968, the Law Commission noted that the wiretap provisions may be unconstitutional. While surveillance is a legitimate national function, it must be conducted within the law and with sufficient protection for privacy. Projects like the CMS usher a techno-utopian dream of PRISM-style mass surveillance without the actual ability to safely conduct it.