On a shaky foundation (Problems with Section 69 of the IT Act)

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On a shaky foundation (Problems with Section 69 of the IT Act)

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• MHA notification on surveillance: The much debated notification in Dec.2018 was issued under Section 69 of the IT Act, 2000, which authorises the govt. to collect personal information of citizens under certain conditions.
• Legitimacy of it all: Assumption is that Section 69 of the IT Act is legitimate, and IT rules 2009 framed on that basis. The 2018 notification comes on the back of those rules. The problem is that the Section 69 itself fails the test of constitutionality as per the 2017 "Right to Privacy verdict".
• An unconstitutional Section 69: The privacy verdict in the K.S. Puttaswamy case says that there is a right to privacy flowing from Articles 19 and 21. For Section 69 to be valid, there must be a legitimate state aim, and also it should be proportionate (means adopted versus the goal).
• Section 69 is just too wide: It is so vague and wide in scope, that it can be used for practically anything, including a Facebook post! It is thus disproportionate in scope, and against the right to privacy.
• A chilling effect on free speech: A broadly-worded Section 69 can instantly chill free speech itself, out of fear. This Section 69 is not "a reasonable restriction" on free speech, as per Article 19(2) of the Constitution. Article 19(2) allows some grounds for restricting freedom of expression - 

1. protecting the sovereignty and integrity of India, 
2. security of State, 
3. relations with foreign nations, and 
4. public order. But Section 69 adds a fifth - preventing incitement to committing cognisable offences. Hence, "a simple law and order problem is not proper grounds for restricting free speech".

• Concentric circles: Law and order is the bigger circle, within which public order circle falls, within which comes security of the state (most grave concern).

1. Law and order needs preventing incitement to an offence,
2. Public order needs peace and tranquility. Section 69 allows mass surveillance even when public order prevails, and only law and order is affected.

• Only post-decisional hearings: Section 69 allows no pre-decisional hearings at all, failing the principle of natural justice.\
• Summary : The Section 69 of the IT Act 2000 fails the tests of proportionality and constitutionality.

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