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State or friendly relations with sovereign States or
public order or for preventing incitement to the
commission of an offence, it cannot intercept the
messages or resort to telephone-tapping unless a public
emergency has occurred or the interest of public safety
or the existence of the interest of public safety requires.
Neither the occurrence of public emergency nor the
interest of public safety are secretive conditions or
situations. Either of the situations would be apparent to
a reasonable person.”
However, in the absence of a public emergency and
without there being an underlying interest of public safety,
Section 69 allows surveillance under an impenetrable
shroud, where there is no situation which is “apparent to a
reasonable person”. It is submitted that Section 69 of the
IT Act and IT Rules of 2009, in general, lack any
requirement for transparency and accountability inasmuch
as the persons affected by wrongful interception of their
private communications are never made aware of this.
Without a public emergency / public safety requirement,
there is no publicly discernible situation either which
would serve to alert citizens that the government may be
resorting to surveillance, or to serve as a publicly
verifiable justification for surveillance.
XXXI.
BECAUSE, in any event, the public emergency / public
safety requirement may justify the narrow view taken
regarding judicial oversight in the Wiretapping judgment
(supra), but the complete absence of such a requirement
under Section 69 of the IT Act renders judicial oversight
virtually indispensable.
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