This article explains the legal position regarding the e-surveillance power of India and the consequences if the same is exceeded by Indian Government. In particular it is explaining the balance between privacy rights and e-surveillance powers of Indian government.

Of late we are witnessing a controversy raised by the concerns of security agencies to regulate Blackberry services in India. The security agencies are demanding an access to data that are being encrypted by services like Blackberry. This raises a pertinent question regarding the limits of e-surveillance powers of India, including powers to block web sites. It would be interesting to observe how the Indian Government will balance privacy rights and e-surveillance requirements of the State? This exercise may have serious legal consequences and it would be better to look at the legal angle of it as well.

I contacted Praveen Dalal, the leading Techno-Legal ICT and Cyber Law Specialist of India, through an e-mail in this regard. He comprehensively explained the legal position regarding the blocking of web sites and limits of electronic surveillance powers of the State as follows:

“In India the Indian Computer Emergency Response Team (CERT-In) has been designated as the single authority for issuing of instructions in the context of blocking of web sites. CERT-In has to instruct the Government to block the web sites after verifying the authenticity of the complaint and satisfying that action of blocking of website is absolutely essential. There is no explicit provision in the Information Technology Act, 2000 (IT Act, 2000) for blocking of websites. In fact, blocking is considered to be censorship; hence it can be challenged if it restricts the freedom of speech and expression. But websites promoting hate, contempt, slander or defamation of others, promoting gambling, promoting racism, violence and terrorism, pornography and violent sex can reasonably be blocked since all such websites cannot claim the Fundamental Right of free speech and expression. The blocking of such website may be equated to "balanced flow of information" and not censorship”.

As far as e-surveillance powers of the State are concerned he explained as follow:

“Section 69 of IT Act, 2000 empowers the Controller of Certifying Authority to order the interception of electronic information transmitted through any computer systems in India”.

This explains the legal position of e-surveillance and web site blocking powers of India as per the provisions of IT Act, 2000. A logical question that arises is what will happen if the State exceeds it powers of blocking of web sites or e-surveillance?

Praveen Dalal explains this position by suggesting that “If the blocking of a website or e-surveillance is arbitrary, unreasonable and unfair and is based on extraneous and irrelevant materials and reasons, then it would be vulnerable to the attack of unconstitutionality, being in violation of Articles 14, 19 and 21 of the Constitution of India”.

It would be interesting to observe how Government of India will resolve the conflicting issues of e-surveillance powers and privacy rights in India.

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