News Excerpt
Amid questions over possible surveillance and violation of privacy following bulk call data records being sought by the Department of Telecommunications (DoT), the government asserted that the data was only being collected to analyze and improve the quality of telecom services and ruled out any form of surveillance.

●    Earlier the Cellular Operators Association of India (COAI) wrote to the government that some local units of the DoT “continue to seek voluminous CDR details from the licensees on a regular basis in contravention” of the standard operating procedure for providing CDRs to law enforcement agencies.
●    In a statement, the DoT said that given the numerous complaints about quality of service on the country’s telecommunications networks including call drops, echo, cross connections, incomplete or poor caller experience, the DoT had developed a software tool to analyze big data and accurately ascertain call drops in any area.
●    The government stressed that this data was anonymous and did not contain the names of either the maker or receiver of calls.
●    The government is empowered under the Indian Telegraph Rules, 1951, to access such anonymous data for improving network quality.

According to the COAI, “CDRs sought for specific routes/areas may lead to allegations of surveillance, especially in a state like Delhi having numerous VVIP zones having offices and residences of ministers, MPs, Judges, etc.”
What’s a Surveillance State?
A surveillance state is defined as a state which legally surveils all actions, locations, and friends of its citizens, in order to prevent crimes or in order to solve them faster. Nevertheless, the term has negative connotations and dangerous implications for citizen’s privacy.
Need for Surveillance by the State:
⮚    To fight crimes such as Terrorism, extremism, money laundering, violence and crime.
⮚    To curb fake news
⮚    ‘Due Diligence’ on unregulated areas such as social medias

What are the Concerns about Surveillance State?
⮚    It’s against the freedom of speech as enshrined in Article 19(2).
⮚    Tapping private messages, calls and mails on the basis of vague and arbitrary provisions is against an individual's right to privacy under Article 21.
⮚    Misuse of vague and Ambiguous Provisions that allow Surveillance

What the Rules Say?
Setting aside this unresolved ambiguity in procedure, Rule 419A stipulates another exception to the general rule. In emergent cases, where procuring a lawful order is itself infeasible - either due to remoteness of location, or for operational reasons, interception may be carried out with the prior approval (as distinct from lawful order) of the Head or the second senior most officer of the authorized Law Enforcement Agency at the Centre, or officers authorized in this behalf - not below the rank of Inspector General of Police - at the States.
✔    After clearance from the Home Secretary, officers of the rank of Superintendent of Police (SP) and above alone were authorized to seek such details from telecom operators.
✔    In addition to this, the SPs are required to give a mandatory declaration to District Magistrates (DMs) about the CDRs obtained every month.

Privacy Judgment
In the Puttaswamy judgment in 2017, the Supreme Court had held that any action that violates the privacy of a citizen has to undergo four tests: the existence of a law, proportionality, legitimate state aim/purpose and the procedure.

According to the UK based firm Comparitech, India, the world’s largest democracy, ranks behind only Russia and China when it comes to surveilling citizens. On the company’s privacy index, India scored 2.4 out of 5, indicating a “systemic failure to maintain (privacy) safeguards.” There Is an urgent need to ensure the application of surveillance objectively with strict norms. Surveillance can be subjected to the Parliamentary and Judicial oversight along with an Independent Review Committee.

Rule 419A of the Indian Telegraph Rules, 1951
    Rule 419A was not part of the Telegraph Rules when they were originally notified in 1951.
    It was introduced by way of an amendment in 2007, which was necessitated by the Supreme Court's condemnation in PUCL of the lack of procedure governing telephone tapping.
    According to Rule 419A, a direction for interception may normally be issued only by the Union Home Secretary at the Centre, or a State Home Secretary at the States.
    However, in unavoidable circumstances, a lawful order may be issued by an officer not below the rank of a Joint Secretary to the Government of India, who has been authorized by the Union/State Home Secretary to this effect
Now the term "unavoidable circumstances" has not been defined under the Telegraph Rules, Telegraph Act, any other legislation, or judgments by courts of law. As a result, there exists no objective standard to determine whether a given situation qualifies as an unavoidable circumstance.