Vol.12 Issue 2 (2016)

Inside the Machine: Constitutionality of India’s Surveillance Apparatus

Bedavyasa Mohanty

(This article was published prior to the Puttaswamy judgement)

This paper seeks to analyse the nuances of some of those laws and tools that enable the State to keep a constant watch over its citizens’ activities. It also attempts to test the validity of the State’s surveillance powers against the principles of liberty and justice enshrined in the Indian Constitution. In doing so, the author aims to challenge the archaic foundations of Indian surveillance laws while drawing attention to areas that are in need of re-examination or, in some cases, complete overhaul. Part II of the paper is a brief exposition of the various laws and rules currently in effect that enable the State to intercept communications. This part aims to highlight the systemic shortcomings that are common to all legislations pertaining to surveillance.
Part III traces the development of these laws across modern history in an attempt to unearth and examine the bases of the power of interception. This exercise aims to bring to light the severe lack of legislative discourse that surveillance laws have been subjected to in India. It also seeks to highlight the dire necessity of immediate legislative re-examination of these laws. Part IV attempts to explore the incongruity between the powers of interception of communications and the fundamental freedoms assured in the Constitution.
It contends that surveillance in its current form may not constitute a reasonable restriction envisaged under Article 19(2) of the Constitution. Part V examines the unfeasibility in implementation of these laws and explores their shortcomings that inhibit the actualisation of constitutional goals. Part VI looks at similar laws and rules in force in other developing and developed nations. This part highlights surveillance practices followed in these countries that can feasibly be adapted to an Indian context to make our laws more progressive.

Author

Junior Fellow, Cyber Initiative, observer Research Foundation