Electronic surveillance: Much ado about nothing?

On 20 December 2018, the Ministry of Home Affairs (MHA), Cyber and Information Security Division, issued an order authorizing ten security and intelligence agencies to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource under the Information and Technology Act, 2000 (IT Act).

The order created a furore with several stakeholders claiming that this granted unprecedented draconian powers to investigating agencies to access all personal data of individuals. However, an analysis of the wording and effect of the order seems to suggest a different story.

The fact that the central and state governments have had the power to undertake surveillance is evident from the analogous provisions contained in section 5(2) of the Indian Telegraph Act, 1885 (Telegraph Act), read with rule 419-A of the Indian Telegraph Rules, 1951 (Telegraph Rules), and section 69 of the IT Act read with the IT Rules.

Cyril Amarchand Mangaldas is India’s largest full-service law firm. Bharat Vasani is a partner and Vidhi Sharma is a senior associate at the firm.