SURVEILLANCE, WIRETAPPING AND CBFC

Author: Astha Rao, Amity University, Noida, Uttar Pradesh

Co-Author and Editor: Vaibhavee Jaipurirar, Sharda University, Greater Noida, Uttar Pradesh



1. Meaning and scope of surveillance in India

Surveillance means closely watching or observing a person or a group particularly the one who is under suspicion. Surveillance has even though enabled improvements in security and law enforcement but they have also created unresolved implications for civil liberties and privacy. Most of these mechanisms are framed without democratic discussion or debate, through private contracts with technology providers and executive mechanisms, without any transparency and public accountability

2. Freedom of Press in India

The Indian Constitution does not expressly talk about freedom of the press. However, according to article 19(1) (a) of the Indian Constitution, “All citizens shall have the right, to freedom of speech & expression.” It is now a settled principle that under Article 19(1) (a) the words “speech and expression” include freedom of the press as well. The freedom of the press includes freedom from interference from any authority which can affect the content and circulation of newspapers.[1]

3. Surveillance laws in India and is it breaching right to privacy

The Central Government in December 2018, authorised 10 Central agencies to conduct surveillance including the Intelligence Bureau, the Directorate of Revenue Intelligence, the Delhi Police Commissioner etc. under powers conferred on it by sub-section 1 of Section 69 of the Information Technology Act, 2000 (21 of 2000), read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009. It has authorized agencies to decrypt, monitor, and intercept any information in any computer resource. This is an extreme measure and it denies people their right to privacy. On one hand, the protection of personal data has been accepted as a fundamental right in the Puttuswamy case, while on the other hand, an effective law to balance and limit the rights of citizens against the larger public interests is absent.

4. Who has the power to grant permission for Surveillance? And on what basis

Section 69 of the Information Technology Amendment Act, 2008 empowers the government to decrypt, intercept or monitor any information or data for the reason of public order, public safety etc.

7. Conclusion

In India, under the existing regulatory rule, surveillance is either expressly unregulated or mandated. The legal provisions regarding surveillance in India derives its authority from the 1885 Telegraph Act and presently when a legal frameworks for protecting citizen’s right to privacy is absent and a significant amount of surveillance happens extra-legally, there is an urgent need to bring reforms in the surveillance laws prevailing in India. Reforms are needed to restrict the State’s power to carry out surveillance and it should be done only when it is of utmost necessity. Along with the laws, severe penalties should be imposed for illegal surveillance.

Wire tapping

1. Meaning

Wiretapping is monitoring of phones or recording/listening to telephonic activities secretly, for gaining information about the activities of the individuals who are communicating through the call.[2]

2. Governed by which Act

The government is empowered to intercept a phone in special circumstances under section 5(2) of Telegraph Act. This provision empowers the government to intercept a phone in case of emergency or in the interest of justice. When any agency for the purpose of investigation requires to record the conversation of a person under suspicion. Such agencies are required to seek permission from the Home Ministry before they can intercept call and messages of the person. The needs and reasons to tap the phone should be mentioned in the application. The permission of State Home Ministry in case of a state. However, this power is not absolute. Nobody is authorised to intercept call and messages of a person without following the protocols and could only be done after mentioning reasonable grounds.[3]

3. Guidelines laid down in PUCL v. UOI –

In the case of PUCL Vs Union of India[4], the Supreme Court observed that the right to have conversation on telephone in one’s office or home is part of the Right to Life and Personal Liberty under Article 21 of the Constitution and it cannot be restricted except according to the procedure established by law. The Court also held that Section 5 (2) of the Indian Telegraph Act, 1882 does not confer unbridled power on investigating agencies to invade an individual’s privacy. The Supreme Court laid down the following safeguards:

· Telephone tapping is prohibited in absence of an authorizing order from the Government of India, Home Secretary, or the Home Secretary of the concerned State Government.

· The order shall cease to have authority after end of two months from the date of issue, unless it is renewed. Although the order may be renewed, it still can’t remain in operation beyond six months.

· Interception of communication or tapping of telephone must be limited to the address stated in the order or to address likely to be used by the person specified in the order.

· As soon as the retention of copies of the intercepted material is not needed under the Section 5 (2) of the Indian Telegraph Act, 1882, they must be destroyed.

· In urgent cases, the power may be delegated to an officer of the Home Department of the State government or the Home Department of Government of India, who isn’t below the rank of Joint Secretary and the copy of such order should within a week of passing of the order be sent to the concerned Review Committee.

· This Review Committee shall comprise of the Law Secretary, the Secretary Telecommunications at the Central Government and the Cabinet Secretary and at the state level, the Committee shall consist of Law Secretary, Chief Secretary and another member (other than the Home Secretary) appointed by the State Government.

· The Committee shall within two months of the passing of an order under Section 5 (2) investigate whether its passing is relevant or not. If any order is in existence, the Committee should investigate whether there has been an infringement of the provisions of Section 5 (2).

· If the Review Committee after investigation concludes that provisions of Section 5 (2) have been infringed, it shall order for destruction of the copies of the intercepted material. If after investigation, the committee concludes that there hasn’t been any contravention of the provisions of Section 5(2), it shall record the finding to that effect.

Censorship of films in India:

Introduction:

Films censorship, the control of the content and presentation of a film has been a part of the film, therefore has been the part of the film representation since the era of Independence and even before that in British India. In general film censorship in India suppresses natural right given under Article 19(1) ie freedom of speech and freedom of expression, but the constitution has certain restriction and is not absolute with the view of maintaining the smooth working of the society and also maintaining the communal and religious harmony as motion pictures are way more influential and the contents need to be selected carefully as what to be portrait.

Censorship of Films:

The Cinematograph Act, 1952 ensures that films fulfil the objectives prescribed in the law, in this act there is the provision given about the establishment of the Central Board of Film Certification ( U/S 3), if a maker of the film wants the public display of the film than in that scenario maker of the film has to acquire a certificate from the prescribed board, though the power to grant the certification to that particular film is completely discretionary that means it can also refuse the sanction of the public display of that film.

Once the board has examined the film the board can sanction the film under these two categories provided (U/S 5A) of the Act,

· Universal:

Films that have minimum violence or a foul language and can also be viewed by children.

· U/A (Universal adult):

Films that can be viewed by the children who are above the age of 7 years and can be viewed under parental guidance.

· Adults only (A CERTIFICATE FILMS)

Films that contain sexual relationship, physical violence, drugs, nudity or mature theme are only prescribed by the board to be watched by people who are 18 years age or more than that.

· Restricted to a specific class of person (S):

Now this category includes documentary movies in which the permission is only given to a particular section of the society that it should be displayed in. It is not very common in India but is quite common in the UK or USA

One of the first cases where the issue of pre-censorship of the film was raised in K.A Abbas vs Union of India where the supreme court of India considered a the vital question of law regarding the pre-censorship of films by the CBFC board about the freedom of speech guaranteed by Constitution of India under Article 19(1) A

Held:

This the documentary made by the petitioner A Tale of Four Cities wanted to portrait the class difference between the rich and poor director applied for the U certificate provided that he made the certain cuts, but the CBFC board refused for the same.

As the petitioner’s grievance was completely redressed, the petitioner applied for the amendment enabling him to raise the question of pre-censorship stating that in order that the maker has invested so much money and time. The apex court allowed the petition as it raised an important question against the amendment of Constitutional provision as to how pre-censorship should be treated, under the following questions:

· The pre-censorship itself cannot be tolerated under the freedom of speech and expression

· That if it were a legitimate restrain on the freedom, it much is exercised on very definite principles which leave no room for arbitrary action.

Taking into consideration all these, Hidayatullah, CJ made it clear that censorship of the the film including the pre-censorship was constitutionally valid in India as motions pictures are very influential and the films or documentary that gets or do not get permission to be shown must be selected wisely beforehand and therefor it is completely a valid restriction in the ambit of Article 19(2) of the Constitution.

Objectives of the film certification:

The the main object of the CBFC board are as follows

· To ensure that the medium of the film is responsible. Additionally to safeguard the sensitivity of the standards and value the society.

· To ensure that creative freedom and expression is not unjustifiably curbed.

· Ensure to adapt to the social changes.

· To ensure the theme of the film is to provide the right knowledge about the theme or to provide clean or healthy entertainment.

· The ensure that film is cinematically of adequate standards and aesthetic values.

In pursuance of the above the board shall ensure the following:

· Activities that anti-social such as violence is not justified or glorified.

· Inciting words should not be included.

· Scenes that glorify or justify consumption of alcohol or smoking cigarettes.

· Scenes denigrating or degrading women should not be shown.

· The integrity and sovereignty of the the country should not come under the question.

The the board shall additionally ensure that a film.

· That the content is shown in the film should be informed to the viewers prior to the start of the film example. Periodical films should inform the viewer about what period they are portraying the film on.

Reasons for CBFC for banning the film:

In light why a film has been banned or parts of it are censored the main categories for why the same is done are as follows:

· Sexuality

India is the place of rigid social structure. Hence, a medium which portrays sexuality regardless of the audio, written, or visual form which is not accepted by the Indian society, CBFC can ban it on the ground immorality

· Politics

The fact is not hidden that the censorship board has an immense pressure from the political background. The description of an allegorical political scene, directly or indirectly is banned by the particular political party therefore these are not at all appreciated by the government but therefore this is only the reason why the film is banned entirely or scene cuts are done.

· Communal conflict

In the heterogeneous nation like India if a film incites any type of communal conflict the same is censored. The aim is to avoid the consequences that the the audience might have after watching the film.

· Incorrect portrayal

Sometimes the films show the incorrect portrayal of any society, events or about any institution or any person that film can also get banned completely by the board or major cuts are recommended so that person society or institution is not defamed or do develop a wrong thinking about those particular sections.

· Religion

Any a film that depicts any form of disobedience regarding any religion, religious sentiments or has the power to change the mind of the audience in the wrong way is highly criticized and therefore is censored.

· Extreme violence

Portrayal of extreme gore and violence may meddle and disturb the human mind. Viewing such a scene may have a wrong psychological effect on the mind. Then these sorts of films has the chance of getting censored or having cuts recommended by the board.

Conclusion

In India, the idea on which a movie is censored or banned has been evidently traditional norms. That being said, what is censored today, may not be censored tomorrow. The socio-economic dynamics of a rustic is continually evolving. Hence, all regulations must try to adapt to the same. The Constitution of India guarantees freedom of speech and expression with justifiable limitations on certain expressions like contempt of court, morality and decency, the safety of the State, public order, incitement to an offence, defamation, etc. and rightly so.

[1] Sakal Papers Ltd. v/s Union of India, AIR 1962 SC 305. [2] What Is The Law On Phone Tapping In India, iPleaders, https://blog.ipleaders.in/law-phone-tapping-india/ , last seen on 20/10/2020. [3] The Law On Phone Tapping In India, Live Law, https://www.livelaw.in/know-the-law/the-law-on-phone-tapping-in-india-163933?infinitescroll=1 , last seen on 20/10/2020. [4] People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.

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