40
touchstone on which infringement of Article 21 rights may
be justified. However, reasonableness under Article 21 has
evolved over the last twenty-two years, and has bent
towards greater rights-protection, in the manner outlined
herein.
C.
THE ACT
AND
RULES FAIL
THE
TEST
OF
PROCEDURAL
SAFEGUARDS DUE TO THE ABSENCE OF ANY JUDICIAL OR
INDEPENDENT OVERSIGHT
XIV.
BECAUSE the IT Act and the 2009 IT Rules do not
provide for any judicial, parliamentary, or independent
oversight
mechanism
over
electronic
surveillance
conducted under the Act and the Rules, either at the exante, ex-post, or the review stage.
a. Ex-ante Stage: Section 69(1) permits the electronic
surveillance
of
any
information
generated,
transmitted, received or stored in any computer
resource only by the Executive, i.e. by “the Central
Government or a State Government or any of its
officers
specially
authorised
by
the
Central
Government or the State Government, as the case
may be, in this behalf”.
b. Ex-post facto Stage: Rule 3 of the 2009 Rules
prescribes that the aforesaid directions under Section
69 can only be passed by an order “issued by the
competent authority” (although in unavoidable
circumstances, such orders may be issued by officers
not below the rank of the Joint Secretary to the
Government of India). Rule 2(d) of the 2009 Rules
defines the “competent authority” as the (i) the
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