Drop the phone checking, draft surveillance curbing orders
- The hype around the Pegasus case and the misplaced hope in the Supreme Court of India that the probe outcome would be decisive have now been deflated.
India and rest of the world
- Wiretap Act 1986 (U.S.): prohibited private agencies from engaging in surveillance.
- When the government seeks permission to do surveillance it must apply to a Federal Court, and only when there is “no other option”.
- Patriot Act 2001 USA : To counter international terrorism also required court approval.
- Court warrants were required to obtain information, the intrusion was to be supervised by independent bodies, records of all surveillance were to be meticulously kept, and notices were to be given to those under surveillance.
- The principle of maximum disclosure would govern surveillance law. Journalists were recognised as being particularly vulnerable.
The Indian scene
- In India, authorities authorise 9,000 interception orders every month, and these orders are not issued by courts but by police officers.
- Facial recognition technology: Found to be violative of human rights in several countries is routinely resorted to in India, with hardly any protest.
- 2013: Guardian newspaper placed India at fifth position among countries where the largest amount of domestic intelligence was gathered.
- 2018: Justice B.N. Srikrishna Committee report stated that “much intelligence gathering does not happen under the remit of the law, there is little meaningful oversight and there is a vacuum in checks and balances to prevent the untrammelled rise of a surveillance society.
- 2019: News and opinion website quoted a former Home Secretary as saying that he was aware that the Israeli tech firm, NSO, had sold spy software to private firms and individuals in the country.
Way Forward
- Instead of wasting time inspecting mobile phones and coming up with hardly any conclusion, the Supreme Court of India could do well to follow the extensive precedents developed abroad and enable binding orders that severely curtail the unlawful surveillance going on in India by the Government and private parties alike.