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This article is written by Abhinav Anand, from DSNLU, Visakhapatnam. This article deals with the constitutional aspects of telecommunication.

Introduction

The technology has evolved in multiple ways. There is an immense contribution of modern-day technology to different sectors. Telecommunication has been one of the most affected areas because of technological innovations. The world has become a global village because of evolved modes of communication. This article deals with the constitutional aspects of telecommunication. It analyses the need for an effective mechanism by which the different aspects of telecommunication are dealt with. It further envisages different legislation in India meant to regulate telecommunication. It also examines the landmark ruling of the Indian Court wherein the court has tried to strike a balance between citizens’ right to privacy and the right of the state to protect its sovereignty and integrity.

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Freedom of speech and expression and media regulations

Indian Constitution guarantees a set of fundamental rights. Fundamental rights are given utmost importance as they are at the top of different kinds of rights. The right of freedom of speech and expression is considered as one of the basic rights that has allowed the citizens to convey their ideas, beliefs and different kinds of thought. The telecommunication of the country is an inextricable part and it connects every corner of the country by different means. With the advent of innovative technologies, the mode of communication has changed. The print and electronic media have seen exponential growth in the recent past. With the advent of different technology, it has become equally important to protect the sovereignty and integrity of the country which is at stake by communal tensions that have been spread by fake news. 

The significance of Article 19(1)(a) is important and it is observed by the apex court in many cases.  In the words of Justice Patanjali Shastri, it is the foundation stone of all the democratic organisations. Without free political discussion, it is impossible to develop a constructive society. The salient features of these rights came under the scanner when the security of the state was compromised and the integrity of the state was put at stake. 

The apex court has tried to balance the pendulum of security of the state and the freedom of speech and expression in many of its judicial pronouncements.  In Brij Bhushan vs. the State of Delhi, the apex court held that the pre-censorship of the media is a restriction at the liberty of the media guaranteed under 19(1)(a) of the constitution. In Sakal Newspaper pvt. Limited vs. Union of India, the restriction imposed by the government on the size and pages of the government is considered as the restriction on the freedom provided by the constitution.

In Prabha Dutt vs. Union of India, when the news reporter sought permission to interview the convicts punished with the death penalty in Tihar jail. The supreme court stated that the right to freedom of speech and expression is not absolute; it also comes with a reasonable restriction. This right also does not confer unlimited access to the press for gathering information prejudiced to the security of the country.

Telephone tapping and right to privacy

Telephone tapping is referred to as clandestinely or secretly listening or recording someone’s phone call and using the recorded data for unlawful activities. The practice of telephone tapping and personal data misuse has become common in the recent past. This activity has been considered as an attack on the privacy of an individual. The evolution of the right to privacy as a fundamental has been examined over a period of time by the Supreme Court. 

The right to intercept the telephone is guaranteed to the concerned authorities by the Telegraph Act, 1885. Under Section 5(2) of the act, the central and state government is empowered to do so. But, in the recent past, the instance of data theft and privacy breach has become common. The incidence wherein Cambridge Analytica, a British political consulting firm, has taken the data of individuals from their social media handles and used it for their own purposes, posed a threat to the individual’s right to privacy.

In People Union for Civil Liberties vs. Union of India, the apex court held that the telephone tapping creates infringement of the right to privacy and created a safeguard against the arbitrariness of the state surveillance.  

These are the guidelines laid down by the supreme in the abovementioned judgment to exercise the powers of the surveillance by the central or state government.

  1. The order of the telephone tapping must be issued by the home secretary of the central and state government or in the case of emergency the power may be delegated to the officer of the home department of the centre or state and a copy of the report must be sent to the review committee of the state.
  2. The authority while considering the order must consider that the information necessary to be required could reasonably be required by other means.
  3. The orders issued under the Indian telegraph act shall be valid for the 2 months.
  4. The review committee shall be constituted consisting of the secretary-level officers both at centre and state. The committee will assess if the order is passed according to law or not, if it is passed in contravention with the law, then they can ask to destroy any copies of intercepted messages.
  5. The authorities issuing the interception order must maintain records of:
  • The intercepted communication
  • The extent to which material is disclosed
  • The number of people to whom the material is disclosed and the identity of that person
  • The number of copies made of the material.

Relevant laws governing telecommunications and its constitutional validity

Indian Telegraph Act, 1885

The Indian Telegraph Act,1885 was passed to govern telegraphy, phones, communication, telex and fax in India. The act allows any authorised public official to intercept communications. In 2007, interception rules were issued under rules 419 of Indian Telegraph Amendment Rules.

Accountability

  • Chain of custody of interception

Designated authorities in security agencies to send interception orders:

All the security agencies must designate an officer not below the rank of superintendent of police to send interception orders to the designated officers of the service providers.

  • Orders to be sent to review committee

A copy of every issued by the competent authority must be sent to the review committee within 7 working days.

  • Service provider office to maintain records

The designated officer assigned the task of interception must maintain the records of 

  1. The intercepted message
  2. The particulars of the person whose message was intercepted
  3. The name and detail of the person who intercepted the message
  4. The mode and method in which the copy is made and the destruction of the copies
  5. The number of days in which the order remains in force
  • Service provider officer to acknowledge receipt of the interception order

The officer appointed by the service provider must acknowledge the receipt of the information of the interception order within 2 hrs. With every 15 days, the nodal officer must forward a list of interception authorisations to the nodal officers for authenticity.

The state of Maharashtra vs. Bharat Shanti Lal and Ors.

 In this case the constitutional validity of the interception provisions of Section 13 to 16 of Maharashtra Control of Organised Crime Act, 1999 was challenged. The Supreme Court observed in this case, though the right to privacy is an intrinsic part of the right to life it is not an absolute right, thus the court is required to know whether the procedure is just, fair and reasonable. The court upheld the validity of the challenged provisions and stated there are sufficient procedural safeguards to protect the arbitrariness of the authorities. Furthermore, the objective of the act is to prevent the commission of organised crime so the said provisions allow the concerned authorities to take the necessary steps to prevent any such commission.

Amar Singh vs. Union of India and others

In this case, the petitioner claimed that his right to privacy had been invaded by the interception of his phone calls. The apex court in this case has emphasised on the responsibility of the service provider. The service provider should be cautious enough while dealing with the interception of phone calls when any service providers receive any request of phone interception then he must cross-check the authenticity of the request. If the request is full of procedural mistakes then he should act upon such request.

Landmark cases

Shreya Singhal vs. Union of India

 In the instant case due to the death of Shiv Sena chief Bala Saheb Thackrey the party called for the bandh. The two girls involved in this case were arrested by the police for sharing and liking the post in which some displeasure was expressed by one of the girls. The police had exercised the Section 66A of the Information Technology Act, 2000. Later on, the girls were released and the criminal case against them was also removed. Section 66A of the Information Technology Act, 2000 was challenged before the Supreme Court as violative of fundamental rights of speech and expression.

The issues raised before the court are as follows:

  1. Whether section 66A, 69 A and 79 is constitutionally valid.
  2. Whether section 66A was curtailing freedom of speech and expression
  3. Whether section 66a is covered under 19(2).

The supreme court after listening to the arguments from both the sides  held the following things:

  1. Section 66 A was held unconstitutional as it takes away the right to freedom of speech and expression. 
  2. Section 66A of the Information Technology Act, 2000 is unconstitutional as it violates Article 19(1)(a) of the constitution and it is not saved under 19(2) of the constitution.
  3. Section 69 of the act is blocking the access of information by the public is held constitutionally valid.

Anuradha Bhasin vs. Union of India

In this case the issue started with a security advisory issued by the home department of the state government of Jammu Kashmir asking people to cut short their stay. Further, orders were issued by the government department for the closure of schools, universities and other offices. The internet connectivity, mobile services were also shut down until further orders of the government.

On the same day due to prevailing circumstances, the district magistrate has issued 144 of Code of Criminal Procedure barring the public gathering apprehending the breach of peace and public tranquillity.

Due to this, journalist movement was also restricted and they were not allowed to carry out their trade and occupation guaranteed under Article 19(1)(g) of the constitution.

Also, in the same context, the legality of internet shutdown was also challenged in the supreme court.

Issues before the court 

  1. Whether the freedom of speech and expression and freedom to carry trade, occupation and business over the internet is part of fundamental rights or not?
  2. Whether the prohibition of internet access is valid or not?
  3. Whether the freedom of the press is violated due to restrictions?

Judgement

The court held that the freedom of expression through the internet is an integral part under Article 19(1)(a). The challenged section fails to pass the threshold of the fundamental right guaranteed to the people under Article 19 so the court declares the section as invalid.

Conclusions

The recent pronouncement of the apex court has provided an in-depth analysis of the various facets of the right to privacy under Article 21 of the Constitution. With transformative constitutionalism exploring the new dimensions, it is time to relook into the surveillance law or the time to protect the state from becoming the Orwellian state. The constitutional safeguard has been wiped off by the recent attack on the privacy of legislation of the government. So, in order to protect the rights of the citizens, we need equally attentive constitutional and aware people about their basic rights. The exercise of any arbitrary government should be declared null and void because the state has to protect the dignity of the individual which is at par with anything.


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