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.