Dr.

ram Manohar lohiya national law university,

lucknow

Final draft
Topic- surveillance laws in india
SUBMITTED TO: SUBMITTED BY:
DR. SHASHANK Abhishek yadav
SHEKHAR

ASST. PROFESSOR b.a.ll.b

(LAW)
DR. RAM MANOHAR Semester- 1
LOHIYA NATIONAL
LAW UNIVERSITY,
LUCKNOW

Enrollment no.- 210101006

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 Acknowledgement
I express my gratitude and deep regards to my teacher for the
subject Dr. Shashank Shekhar for giving me such a
challenging topic and also for his exemplary guidance,
monitoring and constant encouragement throughout the course
of this thesis.
I would also like to thank the librarians of Dr. Madhu Limaye
library who extended their assistance to me by helping me out
consult the relevant books and provided me with research
materials and good books to work upon and the distinguished
authors jurists and journals for providing n the public domain
such invaluable information. I also thank all of my friends and
seniors who aided me along the way.
Lastly, I thank almighty, my family and friends for their
constant encouragement without which this assignment would
not have been possible. I know that despite my best efforts
some descrepancies might have crept in which I believe my
humble Professor would forgive.
.Thanking you all
Abhishek yadav -

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 Declaration
I hereby declare that the project work entitled “Surveillance
laws in India” submitted to the Dr. Ram Manohar Lohiya
National Law University, Lucknow is a record of an original
work done by me under the guidance of Dr. Shashank
Shekhar, Assistant Professor, Faculty of Law, Dr. Ram
Manohar Lohiya National Law University and this project
work is submitted in the partial fulfilment of the requirements
for the award of the degree of B.A.LL.B (hons.).The results
embodied in this thesis have not been submitted to any other
university or institute for the award of any degree or diploma.
-Abhishek yadav

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 Introduction
Surveillance means monitoring, collecting or intercepting
data of the individual by a third person. With advancement in
technology and increased number of telecommunication and
internet users in India we are more prone to share our personal
and confidential data via the aforementioned ways of
communication but we do not know that a third person or an
interceptor can collect and monitor our data. For avoiding this
situation India have previously enacted legislations on
surveillance of a call or website. Surveillance in its strictest
sense can also be proved very helpful in monitoring national
security and criminal offences, in context of this there are
certain authorities and departments which are allowed to
monitor and intercept the data of another person but also the
reasons should be substantially similar to that provided in the
clauses of the legislations.
In India surveillance issues are monitored by two
legislations at present, the first is The Telegraph Act, 1885
which majorly deals with interception of calls and prohibits
third person from interception of calls and also provides
authority and justified reasons for doing so.
Another legislation relating to surveillance is Information
Technology, 2000 also known as the IT act of 2000. This
legislation deals with surveillance of electronic
communication and provides necessary regulations and
guidelines regarding to it.

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 Surveillance is being talk of the town due to contemporary
issues like Peagasus which allegedly traced data of various
high profile Indian individuals. This has made government to
rethink on its policies regarding surveillance and to avoid
such happenings in future. Illegal surveillance is also a very
serious threat to the privacy of the individual which is per
Supreme court’s observation a fundamental right of an Indian
citizen.
Threat to privacy is implied threat to the fundamental
rights of the netizens provided in the Constitution of India. In
furtherance to the same central government is also in process
of making a more regulatory and redefined legislation which
deal with the cyber issues and protection of data of an
individual. It also sought establishment of Data Protection
Authority which will entertain issues relating to protection of
data and hence the privacy.
In context of aforementioned issues it is also necessary to
consider and acknowledge the perspectives various other
countries and try to find out the possible methods to tackle the
third party data interception. It is also necessary to look at the
perspective of honourable Supreme court of India and various
directions and observations made by the court.

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 Historical background
There had been innumerous illegal surveillance instances
in India majorly in the Indian politics. Some famous snooping
cases includes-
In 1998 the then chief minister of Karnataka Ramakrishna
Hegde resigned following a telephone tapping scandal. He
stepped down on moral grounds after details emerged of wire-
taps on 50 individuals including journalists and decidents
within the Janta party. Subsequently, the authorization given
to the state police for tapping too was made public. Not only
this but illegal surveillance has also led to fall of the
government when in march 1991 tow Haryana policemen
were arrested for snooping outside Rajiv Gandhi’s residence
which led to the resignation of the then prime minister
Chandrashekhar. Furious over the alleged snooping, Rajiv
Gandhi decided not to back Chandrashekhar during the
confidence motion. Another major issue of illegal surveillance
was the famous Tata Tapes. The Tata tapes was the first
instance of the leak of the large volume of intercepted
conversations the tapes dealt with conversations of
industrialists Nusli Wadia, Ratan Tata and Keshub Mahindra.
The illegal wiretaps published by The Indian express showed
Tata’s attempts to get the centre to intercede in a matter in
which the United Liberation Front of Assam (ULFA) was
extorting money from tea states, including those owned by
Tatas. Then Prime Minister I K Gujral ordered a CBI inquiry

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into the audio tape leaks but shortly thereafter the enquiry was
closed for want of evidence.
More than a decade after the Tata tapes hundreds of
conversations of corporate lobbyist Nira Radia were leaked in
2008. Conversations of Radia with leading politicians,
industrialists and journalists were recorded by the income tax
department over a period of 300 days between 2007 to 2009
in connection with the 2G telecom scam. One of the
industrialists whom Radia spoke to was Ratan Tata, following
the release of these tapes Tata went to court seeking a restraint
on the media from carrying any more such tapes.
Illegal surveillance has been a reoccurring issue in the
Indian history and a most recent Peagasus virus has
questioned the existing legislation on surveillance in India and
also once again realised the need of a modified and more strict
legislation regarding to it. Illegal surveillance has proved to be
a serious threat to e-communication and also endangering the
security of an individuals privacy. Along with privacy of
individuals it can also be a threat to national security and a
more strict legislation in relation to it.

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 International perspective
The regulation of surveillance is a tough area and there are
various laws and bodies setup by different developed nations
which might be having persuasive value in Indian context.
The major countries and their regulations on surveillance are-
 United Kingdom - The UK govt has enacted various
legislations in regard to regulation of surveillance, out of
which a few major legislations are-
1. European convention on human rights (ECHS)- It
provides fundamental rights and freedom of the citizen
which a current government must ensure. Article 8 of
this convention provides right to respect to private and
family life, his home and correspondence.
2. Intelligence Services Act 1994 (ISA)- It makes
provisions for issue of authorisation and warrants
enabling intelligence services to take against interception
of wireless telegraphy.
3. Part 3 Police Act 1997- It provides requirements and
reasons to authorise interference in person’s property and
privacy.
4. Data Protection Act 2018- It regulates processing of
personal data. It provides regulation of good information
handling with which organisations must comply.
5. General Data Protection Regulation (GDPR)- The GDPR
is Europe wide law that applies to use of personal
information.

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 Russia- The constitution of Russia provides that each
person has right to privacy and personal and family
secrets and everyone has right to keep their
communications secret and its restriction is only subjected
to court decision. Collection, storage and use of one’s
personal data can only be done with the persons consent.
In 2007 Russia adopted The Personal Data Law, it was a
major law regarding data privacy issues. It ensures all
types of data protection and it also clarify that what type
of data is called private data, what type of data can be
collected and also authorizes that which agencies can
collect the data with the consent of the person concerned.
In may 2014 Russia enacted the Yarovaya Law which
controlled Russian telecom and internet industries. It
stated that all the telecom companies have to store all the
voice and text messages for six months and provide the
required data on the request of the police.
 AUSTRALIA- Australian government has also made certain
legislations in order keep an eye on interception and
surveillance these are Telecommunications (interception
and access) act 1979 it provides a number of provisions
that deals with personal data its interception and storage
and provide grounds and conditions in which a person’s
data could be intercepted.
Another such legislation is Surveillance devices act of
2004 it is an act of law in the commonwealth of Australia.
This act includes powers which support commonwealth
investigations in limited range of offences.

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 These were the legislations of few countries however
many more other countries has passed certain act or
legislation in regard to the surveillance. Overall we can
see that international perspective also indicates that a
personal data of an individual of their country have all the
rights to keep their communications private and any type
of surveillance or collection of such data can lead to
infringement of their right to privacy, however
surveillance is also termed as very useful and helpful tool
which when used in bona fide manner can help in
detection of threat to the national security , integrity of
country and many nations use it for surveillance of
criminals which help concerned officials in detaining
them.
So overall in international perspective it is evident that
data security and regulations on call interceptions are
governed by much more effective and versatile laws
which can be a source of inspiration or have persuasive
values in India’s pursuit of data security and surveillance.

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 Indian perspective
Surveillance in India is a one of a very recent issues when
a spyware called Peagasus allegedly collected data of
around 300 individuals without their consent and it has
made government to rethink their laws and policies
regarding surveillance as there are currently two major
legislations which deals with the surveillance in India and
these are-
1. The Telegraph Act 1885- The Telegraph act of 1885 deals
majorly with the interception of calls. It is an legislation
which governs the use of wired and wireless telegraphy,
radio, digital data communications. Its gives jurisdiction
to government of India to establish, maintain, operate and
oversight of all types of wired or wireless communications
within the territory of India. It also provide authorization
to government law enforcing agencies to intercept
communication and tapping of phone lines under the
conditions defined in the constitution of India.
This legislation deals with interception of calls and the
main section which governs it is Section 5(2) of the
Telegraph act which states that in case any public
emergency or in the view of safety of public, or in the
interest of public the central or state government or any
other official on behalf of the central or state government
is satisfied that in the sovereignity and integrity of india,
security of country or to prevent any offence it is
necessary to do so then by the reasons to be recorded in
writing that message or any class of messages to or from
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 any person received by any telegraph shall not be
transmitted, intercepted or detained or shall be disclosed
to government.
So under this law the government can intercept calls in
certain situations like for sovereignity and integrity of
country and other which is same as the restrictions
imposed on free speech under Article 19(2) of the
constitution of India.
Apart from the aforementioned conditions it is also stated
that even this lawful interception can not be done against
journalists.
2. Information Technology Act, 2000- This act is commonly
known as IT Act, 2000. It primarily deals with cybercrime
and electronic commerce. This legislation was framed to
provide legal recognition to transactions carried out by
means of electronic communication and storage of
information. It deals with crimes which involves a
computer or network located in India.
In context of surveillance section 69 of the Information
Technology Act and the Information Technology
(procedure for safeguards for Interception, monitoring and
Decryption of Information) rules, 2009 were enacted
which furthered the legal framework for electronic
surveillance. Under this act all electronic transmission of
data can be intercepted. Apart from the restrictions
provided in the Telegraph act and article 19(2) of
constitution , the section 69 of IT act makes surveillance
broader that is surveillance can also be used for the
investigation of ana offence.
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 Apart from these two enabling legislations the government of
India had introduced a bill named as The Personal Data
Protection Bill, 2019. The bill seeks to provide for
protection of personal data of individuals and establishes a
data protection authority for the same. This bill proposes
processing of personal data by government, companies
Incorporated in India, and foreign companies dealing with
personal data of individuals in India. Personal data is that
type of data which when processed or decrypted can turn
out the identity or recognition of an individual.
However, at present this bill is being analysed by a Joint
Parliamentary Committe and as per the recent
observations the experts are seeking that Data protection
bill is loaded in the favour of the government and it is
taking focus away from individual privacy. The Joint
parliamentary committee has adopted its report after two
years of long discussion, and in this report they have
suggested various modifications and improvement
including the suggestion of changing its name to ‘Data
Protection Bill’ dropping the word ‘personal’. The report
recommends that same regulator should govern both
personal and non- personal data.
Now the report of Joint Parliamentary Committee will be
tabled in the Parliament in the upcoming winter session
and only time will tell that if passed in Parliament this bill
can bear good results or not.
India being a developing country needs more regulations and
restrictions which can safeguard the privacy of individuals
and secure them from any type of illegal surveillance.
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 Judicial approach (india)
The Supreme Court of India in many cases discussed about
the unauthorized surveillance and how it is violative of the
fundamental rights of the citizens. Some important
observations of supreme court are-
In Public Union for Civil Liberties (PUCL) vs. Union of
India1 supreme court observed that there is a lack of
procedural safeguards in the sections of Telegraph act and laid
down certain guidelines for interception of calls. Further
supreme court noted that the concerned authorities fails to
keep the records and logs of the interception. The court said
that Tapping is a serious invasion of individuals privacy and it
is the duty of the government to protect the citizen’s right to
privacy which is being abused by the authorities.
In the most recent case of Manohar Lal Sharma vs. Union Of
India and Ors.2 Which was based on the Peagasus spyware
which allegedly intercepted and monitored the data of around
300 people in India, SC observed that members of the
civilised democratic society have a reasonable expectation of
privacy and every citizen of India ought to be protected
against violation of privacy and by referring to the famous
K.S Puttaswamy v. Union of India3 in which supreme court
had held that privacy is a constitutionally protected right and
emerges as a fundamental right under Article 21 of the
constitution and any law which encroaches upon the privacy
of the individual must meet the requirements for restriction of
fundamental rights mentioned under the constitution. By this
1
PUCL vs. Union of India MANU/SC/0149/1997
2
Manohar Lal Sharma vs. UOI and Ors. MANU/SC/0989/2021
3
K.s Puttaswamy v. Union Of India MANU/SC/1044/2017

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supreme court clearly stated that any type of violation in the
privacy of an individual like unauthorized or unreasonable
surveillance must cease to exist.
In the context of illegal surveillance of various journalists and
press members Supreme Court in Anuradha Bhasin vs. Union
of India4 held that Journalists are to be accommodated in
reporting and there is no justification in allowing a sword of
Damocles to hang over the press indefinitely.
Supreme court has observed that state has right to deny the
certain information if they fall under the reasonable
restrictions of Article 19 clause 2 but other than this if state
try to encroach a fundamental right of a citizen then this can
not be accepted and suggested that Union of India should not
be in adversial position when fundamental right of the citizens
is in threat5.
So from these few cases discussed, it is evident that Supreme
court is of opine that illegal surveillance is undoubtedly a
threat to right to privacy and at various point in time
suggested the government of India not to encroach upon the
fundamental rights of the citizen unless it is reasonable and
bona fide according to Article 19(2) of the constitution of
India, and also that if in case surveillance seems to be an
reasonable option then concerned authorities must keep an
record and logs of the data adequately so that the fundamental
rights of citizen are not at par.

4
Anuradha Bhasin v. Union of India MANU/SC/0022/2020
5
Ram Jethmalani v. Union of India MANU/SC/0711/2011

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 SUGGESTIONS
In my opinion surveillance of a person is very sensitive topic
and undoubtedly it might be helpful in avoiding terrorism,
used in identification of criminals but the main point is that all
these should be justified in accordance to the statutes
governing the same however the laws at present needs to be
modified in accordance to advancement in technology and
increase in cyber crimes that is government should invoke
more reasons and circumstances in which authorities will be
eligible to monitor calls or data of individuals. In the present
scenario there are allegedly many applications and websites
which collects the data of people without their knowledge and
there is not any strict legislation which can deal with it, so
government should pass certain legislations which ensures the
protection of the personal data of the user. More on this, the
government authorities must be made more responsible in
tracking the data whether personal or non- personal and
should be emphasised for keeping adequate records and logs
which might be produced in future for reference. A separate
body should be formed primarily for checking on issues
regarding unauthorised surveillance and also for protection of
data of the citizens and to establish a committee which have
the power to authorize the officials for tracking or tapping the
telecommunications of people also it is equally important to
monitor that the data hence collected must be kept securely.
We also need more rules and regulations on the developers of
certain applications and websites to refrain them collecting,
storing or interpreting the data of an individual which may
result in his identification.

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 CONCLUSION
Surveillance is a useful tool for maintaining harmony and for
security of the country but if done by third party or
unauthorized people can create a lot of difficulties for people
at large and may also affect the well being of the nation for
example in the aforementioned illegal tape cases it can be
seen that how the people which were targeted were very
important for the country and illegal monitoring or snooping
may result in a challenge for national security and integrity.
So in the context of this the need of the hour is that
government should become more strict for the data protection
and protection of rights of the citizen of the country. It can be
observed through the recent Peagasus case that even
government sometimes due to political interests end up
violating the fundamental rights of the people and do the
unreasonable things then how about the third party or a person
doing so. It is evident that new statues need to be enacted in
order to impose more reasonable restrictions on the illegal
surveillance and collection of data. It can be concluded that
we still do not have any authority for protection of data and
for checking on those who illegally obtains and store the
personal and non- personal data of individuals. In other
nations there are various legislations which gives the power of
keeping data of people to the government like those in Russia
which can result in decreased transparency and increased
violation of one’s legal rights.
Hence, we need more broad and comprehensive legislation in
our country as India have a large population and number of
digitally active people is increasing day by day so this is the

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duty of government to ensure people that data shared by them
is safe and secure and no third party have access to it.
Government is trying in this direction by introduction of
Personal Data Protection Bill of 2019 but experts and joint
parliamentary committee have suggested various changes in
this to make it more useful in context of current needs of the
country.
Hence, it is concluded that India needs more improved
governance of surveillance and protection of data and privacy
of citizens of India.

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 bibliography
 PRS Legislative Research. 2021. The Personal Data Protection Bill, 2019. [online] Available
at: <https://prsindia.org/billtrack/the-personal-data-protection-bill-2019> [Accessed 22
November 2021].

 Assets.publishing.service.gov.uk. 2021. [online] Available at:

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/786444/Guide_to_the_Regulation_of_Surveillance.pdf> [Accessed 22
November 2021].

 Thelawreviews.co.uk. 2021. The Law Reviews - The Privacy, Data Protection and

Cybersecurity Law Review. [online] Available at: <https://thelawreviews.co.uk/title/the-privacy-
data-protection-and-cybersecurity-law-review/russia> [Accessed 22 November 2021].

 Sharma, D., Sharma, D. and Sharma, D., 2021. Australia | New surveillance law allows
government to quietly modify your social media posts in Australia | SCC Blog. [online] SCC Blog.
Available at: <https://www.scconline.com/blog/post/2021/09/08/australia-new-surveillance-
law-allows-government-to-quietly-modify-your-social-media-posts-in-australia/> [Accessed 22
November 2021].

 The Indian Express. 2021. Explained: The laws for surveillance in India, and concerns over
privacy. [online] Available at: <https://indianexpress.com/article/explained/project-pegasus-
the-laws-for-surveillance-in-india-and-the-concerns-over-privacy-7417714/> [Accessed 22
November 2021].

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