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ules severely diminish the freedom of expressionof citizens and their right to privacy.India, which is poised to be one of the biggestmarkets for video surveillance, registered growth of20% in this regard in the last quarter of 2013. TheDelhi International Airport has installed 3,700 IPsurveillance cameras, 12 the “largest single installationof an IP video system anywhere in India.”Both the government and private businesses haveenthusiastically embraced CCTV technology, includingin municipalities, police departments, airports,banks, schools and supermarkets. Despite the factthat CCTV cameras were installed to tackle terrorismand crime, there are no laws that govern theirdeployment or use in India. The closest law appliesto electronic voyeurism and is contained in Section66E of the Information Technology Act, which punishesthe “capturing, publishing and transmission”of images of any person in a “private area” withouttheir consent, “under circumstances violating theprivacy” of that person. This offence is punishablewith imprisonment of up to three years or a fine ofup to two lakhs rupees (approx. USD 3,000).Moreover, in 2011, the government expandedits internet surveillance in cybercafés, the primaryaccess points for rural villagers. Users now need toprovide their identity card for accessing cybercafés.Requesting this kind of user data is questionablewhen it is used for prosecuting free speech onlineand stifling political criticism. India is also one ofthe worst offenders for takedowns, as well as forrequests for user information. The Google TransparencyReport shows that on requests for userinformation it is ranked after the US only. 13At the end of 2012, most of the major telecomcompanies in India agreed to grant the governmentreal-time interception capabilities for the country’sone million BlackBerry users. 14 The government isalso constantly requesting major web companies toset up their servers in India in order to monitor localcommunications.Freedom of expression and communicationssurveillanceThe Constitution of India guarantees freedom ofexpression under its Article 19(1). However, Article19(2) restricts the exercise of freedom of expression.Article 19(2) can be enforced by the state in12 www.indigovision.com/documents/public/project-briefs/Project-Brief-Delhi%20Airport-UK.pdf13 www.google.com/transparencyreport/userdatarequests/IN14 Gallagher, R. (2013, February 22). India’s spies want data enevery BlackBerry customer worldwide. Slate. www.slate.com/blogs/future_tense/2013/02/22/india_wants_data_on_every_blackberry_customer_worldwide.htmlthe interest of the sovereignty and integrity of thestate, the security of the state, friendly relationswith foreign states, public order, decency or morality,or in relation to contempt of court, defamation orincitement to an offence. 15 The constitution does notinclude a freestanding right to privacy. However, theSupreme Court of India has read the right to privacyin Article 21 of the constitution – the right to life andliberty. It states, “No person shall be deprived ofhis life or personal liberty except according to procedureestablished by law.” 16 Considering the rightto freedom of expression and the right to privacy,the fundamental question is the balance betweenthe two.For the last few years, a comprehensive PrivacyBill has been under discussion in India, althoughit has still not been adopted by the government. Adraft dated 19 April 2011, entitled “Third WorkingDraft (For Discussion and Correction) LegislativeDepartment”, was originally leaked, but is nowfreely available online. 17 The draft supports privacyrights broadly, and includes a strong mechanism toaddress breaches of the right to privacy, called theData Protection Authority of India (DPAI). Withoutprivacy laws and safeguards to protect data, the collectionand retention of such data can be misusedeasily, and this could have a chilling effect on freespeech among the Indian population. Most Indianmembers of parliament are aware of the need fora legal framework to protect the privacy of Indiancitizens. In 2011, the parliament passed new dataprotection rules; however, there is still no privacylaw in India. Like freedom of expression and freedomof association, privacy is a fundamental humanright and underpins human dignity.A road aheadThe following actions and steps are recommendedfor India:• To take better account of the right to privacyand protection from arbitrary interference withprivacy. There is also a need to address masssurveillance and unwarranted digital intrusionsin India. Both are necessary steps to fight selfcensorshipand promote freedom of expression.• Communications surveillance should be regardedas a highly intrusive act that interferes withthe rights to privacy and freedom of opinion andexpression, threatening the foundations of ademocratic society.15 The Constitution of India, Article 19 (2).16 www.legalserviceindia.com/articles/art222.htm17 Available at: bourgeoisinspirations.files.wordpress.com/2010/03/draft_right-to-privacy.pdf• Reform the Information Technology Act provisions66A and 79 regarding takedownprocedures so that authors of content can benotified and offered the opportunity to appealtakedown requests before censorship occurs.• Revise takedown procedures so that demandsfor the removal of online content do not apply tothe legitimate expression of opinions or contentin the public interest. This is important so thatfreedom of expression is not undermined.• The internet should not be used by governmentsas an excuse for introducing new technologiesof control or for curtailing existing liberties. Althoughthe right to freedom of expression canbe restricted, the circumstances under whichthis may be done have to be narrowly circumscribed.This is the case when it comes tofreedom of expression on the internet, and inany other forum.• In a country like India where 243 million peopleaccess the web through mobile phones, thereis a need to reform policy so that regulation ofthe internet is compatible with the internationallegal guarantee of the right to freedom of expression.Moreover, there is a need to promoteaccess to the internet as well as the developmentof local content.• Service providers or hardware or softwarevendors should not be compelled to build surveillanceor backdoors into their systems, or tocollect or retain particular information purelyfor state surveillance purposes.• Finally, there are many aspects involving theright to privacy and freedom of expression thatrelate to each other and that have not been addressedstrongly in Indian legislation, policyor case law. For example, the taking of photographsby individuals (not the media) has notbeen addressed, nor has the ability of individualsto issue comments anonymously online, orthe “right to be forgotten” online and offline.Freedom of expression and privacy supporteach other in many ways, as the right to expressan opinion or thought freely is often protectedby providing the individual the privacy (or anonymity)to do so. There is therefore a need tounderstand various aspects, such as the rightto be anonymous, the right to privacy, and theright to be forgotten, with respect to freedom ofexpression and freedom of association. Theseissues are being addressed by many countriesand at an international level.It is high time the Indian government took accountof the right to privacy and protection instead of interferingwith privacy. Addressing the issue of masssurveillance and unwarranted digital intrusionsis a vital and important step to fight against selfcensorshipin India and will automatically promotefreedom of expression.138 / Global Information Society Watchindia / 139