In my considered opinion, right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and in alienable from human being. In other words, it is born with human being and extinguish with human being.
~Justice Abhay Manohar Sapre
Introduction:
In the wake of farmer’s protest Twitter India blocked accounts such as Caravan India, Kisan Ekta Morcha and other such 250 accounts. This action was taken on the orders by the Ministry of electronics and information technology. The government made it clear that that a private commercial entity in India cannot unilaterally decide on public law and order, ignoring the democratic values of the country. [1]
The fact here to note is this is not the first time that such kind of action was taken under section 69A of IT Act. [2] Last year several famous Chinese apps were blocked considering the national security because of clash between Indian and Chinese troops in Ladakh. And 2 years ago, Jio users reported that they were unable to use sites such as Indian Kanoon, Reddit, and Telegram etc. These apps were also blocked by the government under the same section.
Scope of Section 69A:
The section was added in the Act by the Parliament in 2008, through amendment. It confers a power on the Central Government to issue directions for blocking for public access of any information through any computer resource. [3] In other words, it allowed the Central Government to deny public access to an intermediary if it is found to be in against the interest of sovereignty and integration of the nation.
The term intermediary inclusive of “telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.” [4] It is to be considered that this definition is inclusive and not exhaustive and other terms can be further added if required.
If there is a website which threatens India’s sovereignty and integrity, defence, public order and friendly relations with foreign countries, in such circumstances the government has the power to ban it, but with due process.
The due process is given under Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009. Apart from the government, the Department of Telecommunications can also issue blocking directions to the internet service providers. The Right to Information (RTI) queries is not applicable on this law because the section mandates strict confidentiality about the complaints and the action taken.[5]
The government also has power to remove objectionable content from any website. Now the question that is still unanswered is that what the definition of the word “objectionable” is. In order to monitor any information generated, received, transmitted or stored in any computer, the Home Ministry in 2018 issued an order which empowered 10 central agencies for the same.
Information Technology act, 2000 is not the only one to confer the power on the Central Government to authorize agencies for intercepting and monitoring the accounts. The Indian Telegraph Act, 1885, [6] also, empowered the Central or State Government to authorize other agencies for intercepting and monitoring the accounts provided on the occurrence of any public emergency. This can only be done if it is necessary for the in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.
Validity challenged in Shreya Singhal v. Union of India[7]:
In the case of Shreya Singhal v. Union of India, the validity of the section 69A was upheld by the Supreme Court and the procedure for blocking the websites, if they are threat to the integrity or sovereignty of India. Supreme Court also remarked that the law was constitutional and a website can be blocked only on the basis of reasoned order. It was also added that there are appropriate safeguards which ensures that order can only be issued under with the committee’s approval to block a website after it has heard the aggrieved party. [8] The section 66A [9] of the IT Act was striked down in which made posting offensive comments a punishable offence.
Is the section a threat to privacy?
The law prohibits revealing information about the complaints to block websites. The section was opposed on the ground that it is violative of the fundamental rights but the Supreme Court rejected the claim in the landmark judgment of Shreya Singhal v. Union of India, 2015.[10] Also it was held that this section is essential for maintaining the dignity of the country.
In the case of KS Puttaswamy v. Union of India[11], it was upheld that the right to privacy is a fundamental right. Like all fundamental rights are subjected to the restrictions and are not absolute, the right to privacy is subjected to certain limitations. The restrictions must be backed up by law, legitimate aim and should be proportionate. If the order is passed under section 69 A, then it should pass these 3 tests of validity. If any of these tests are not qualified by the order, then the validity can be challenged. The section is not considered as threat to privacy because orders passed under the section for interception, monitoring and decryption are approved by a competent authority.
There are a number of countries which provide the right to privacy as an absolute right, South Africa, United Kingdom and US to name a few. In India, there is still a probability of misuse of the restrictions due to lack of judicial activism.
The IT Act is not the only act which curtails public liberty, there are others as well. In the case of People’s Union for Civil Liberties v. Union of India, [12] Supreme Court upheld that the telephone tapping violated the fundamental right to privacy and safeguards were created against the vagueness of the powers of the state.
Hence, there is an urgent need to re-design India’s surveillance law because the privacy of citizens can be hampered with such kind of monitoring and interception.
Conclusion:
Section 69 A was added in the IT Act through an amendment in 2008. It confers a power on the Central Government to issue directions for blocking for public access of any information through any computer resource. The validity of the section 69A was upheld by the Supreme Court and the procedure for blocking the websites. Though right to privacy is a fundamental right and is not absolute one and can be sidelined if the case is threatening the integrity and sovereignty of India.
References:
1. OUTLOOK, Source (last visited Apr. 08, 2021).
2. The Information Technology Act, 2000, § 69 A, No. 21, Acts of Parliament, 2000 (India).
3. Id. at 2.
4. The Information Technology Act, 2000, § 2(w), No. 21, Acts of Parliament, 2000 (India).
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