Despite law enforcement’s legitimate aims, archaic laws and outdated regulations have left broad scope for misuse. India’s present surveillance framework is primarily guided by the Telegraph Act of 1885, Postal Act of 1854 and the IT Act, 2000. Over the last two decades, the State has failed to introduce checks and balances to prevent misuse.

Instead, the surveillance powers of the executive have expanded. The 2018 localisation mandate, by the Reserve Bank of India, gave the regulator wide and unfettered powers to access financial and payments data. The Data Protection Bill, pending before Parliament, exempts the State from applicability for national security purposes. Earlier in 2021, new rules notified under the IT Act sought to trace the originator of problematic content, which compromises encrypted communication services and adds vulnerabilities in systems that could harm the security of users.

It is now vital for us to secure our citizens from the threat of unlawful surveillance, irrespective of whether it originates at the hands of a State actor or a non-State actor.

The first step is to formulate a surveillance law or dedicated framework to clarify definitions and purpose. A rehaul of our surveillance infrastructure must align with the requirements of proportionality, necessity and legitimacy, laid down by the right to privacy judgement. The SC, in the Pegasus case, has reiterated the need to inculcate privacy-respecting practices into our surveillance framework and prevent the erosion of a citizen’s right to privacy.

We are optimistic that the expert committee will be of the view that an exclusive surveillance framework is the need of the hour — a comprehensive law that defines actors, establishes accountability measures, and narrows down legitimate aims for surveillance. Parliamentary oversight measures for surveillance activities of the State are common. For example, the United Kingdom follows a form of parliamentary oversight through the Intelligence and Security Committee of Parliament (ISC), which examines the functioning, expenditure and operations of security and intelligence agencies. They are empowered to hold evidence sessions with ministers and senior officials of intelligence agencies.

Today, in India, accountability is merely intra-departmental, involving clearance from within the same ministry. At present, the onus lies on the Home Secretary. Introducing a robust oversight mechanism, supported by parliamentary intervention, is the need of the hour. It is also essential to define which agencies have surveillance powers and lay down robust and clear definitions for key concepts in this sphere. These include key terms such as public safety, national security, public order and the ever-perplexing term “public good”.

Recent developments such as the Pegasus snooping scandal and widespread surveillance methods such as facial recognition technology and contact tracing without adequate safeguards or legislation have also made citizens wary. Our approach towards surveillance regulation will be a key marker of the path this country takes in the future. Do we aspire to build a country with empowered citizens, assertive in demanding accountability? Or one with pliant citizens, with an absolute belief in the benevolence of an authoritarian government projecting itself as a strong guardian?

Gaurav Gogoi is the deputy leader of the Congress in the Lok Sabha

The views expressed are personal