Lawful Interception is a process that “Reconciles” the National Security requirements and Civil Liberties of a Nation. In the Indian context, we have no Lawful Interception Law in India. By Lawful Interception Law I mean a “Constitutionally Sound” Lawful Interception Law and not just any “Self Serving Law”- Praveen Dalal. World over civil liberties are infringed using information and communication technology (ICT). In the past, Indian telecom companies have used private individuals to do phone tapping. Experts like Praveen Dalal have been suggesting enactment of a “constitutionally sound” lawful interception law in India. Till now we do not have a constitutionally sound lawful interception law in India and the same is urgently required.
On the top of it we have projects like central monitoring system (CMS), national intelligence grid (Natgrid), Aadhar, crime and criminal tracking network and systems (CCTNS), etc that are not governed by any legal framework and procedural safeguards.
We also do not have any encryption laws in India nor do we have any encryption standards in India. Further, India has a poorly drafted and decayed cyber law in the form of information technology act, 2000 that needs urgent repeal, inadequate cyber security, missing cyber forensics capabilities, inadequate critical infrastructure protection and so on.
In this background, the home ministry has asked the departments of telecommunication (DoT) and department of information technology (DIT) to examine the existing legal framework and recommend appropriate amendments of the laws to ensure smooth access to services like BlackBerry and Skype.
The home ministry has asked DoT and DIT to examine the Indian Telegraph Act 1885, Information Technology (Amendment Act), 2008, rules under the Telegraph and IT Act and provisions in the licence agreements and recommend appropriate amendments so that requirements, to the extent possible, are incorporated in the Act itself. However, India needs a dedicated lawful interception law and not just few amendments in the present outdated laws.
According to Praveen Dalal, managing partner of New Delhi base law firm Perry4Law and leading techno legal expert of India, India is the only country of the World where Phone Tapping and Interceptions are done without a Court Warrant and by Executive Branch of the Constitution of India. Phone Tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” for Phone Tappings and Lawful Interceptions. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.
The present action of home ministry seems to be in response to these developments that are “unconstitutional” in nature. These activities of Indian government and its agencies can be challenged in Indian higher courts as unconstitutional as violative of fundamental rights of Indians. Let us hope the Parliament of India would soon come up with a constitutionally sound lawful interception law of India.
