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XXVIII.
BECAUSE, Section 69 of the IT Act is wider than even
Section 5(2) of the Telegraph Act, rendering the provision
liable to be struck down on grounds of void for vagueness
a. First, Section 69 of the IT Act permits the
appropriate government to “intercept, monitor or
decrypt” any information generated, transmitted,
received or stored in any computer resource,
without the prerequisite requirement of “public
emergency” or “public safety” that is present in
Section 5(2) of the Telegraph Act. This removes
even the minimum modicum of safeguard present in
the Telegraph Act.
b. Second, the IT Act widens the second-tier test under
the Telegraph Act by providing for two additional
grounds for surveillance, namely in the interest of
the “defence of India” and the “investigation of any
offence”; which grounds do not find any mention in
Article 19(2) of the Constitution.
c. Third,
Section
obligation
on
69(3)
imposes
intermediaries,
an
additional
subscribers
and
persons in-charge of the computer resource to
“extend all facilities and technical assistance” to the
intercepting agency.
XXIX.
BECAUSE Section 5(2) of the Telegraph Act requires a
public emergency or an issue of public safety for the
provision to even be triggered. Despite the fact that
surveillance under the IT Act is not only comparable, but
is perhaps more invasive than telephone tapping, there is
no explanation for why this higher threshold of public
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