citizens’ data exists without external accountability mechanisms or independent oversight. News reports indicate that several ministries141 and police departments142 have also begun or plan to start operations to monitor social media. Such programmes are likely to have a chilling effect on speech on the internet as well, and the question of reasonability arises when these are ongoing programmes, seeking to gauge the “public’s moods”. As legal scholar Gautam Bhatia has noted, if surveillance is an issue that affects freedom of speech and expression, then it needs to have statutory backing according to Article 19 of the Constitution, and such a law should pass the test of reasonability. He observes that the determination of whether programmes like the CMS are reasonable restrictions in the interests of “security of the state” and “public order” would depend upon what line of precedent the court would take: Under the Ramji Lal Modi line of cases, with their broad understanding of the phrase “in the interests of ”, the surveillance regime will be easy to justify (it is hardly deniable that it bears some relation to public order and security). If, on the other hand, the narrower test of Lohia is followed, then the burden upon the government will be much greater.143 Indeed, even though government officials maintain that the requirements under section 5(2) of the Indian Telegraph Act, 1885, read with Rule 419A will continue to apply at least in the case of the CMS, the development of these mass surveillance programmes through executive orders seems to be the apex of a continuous hollowing out of checks and balances in India’s surveillance regime that protect freedom of speech and expression as well as privacy.144 Two acts are central to this regime: the Indian Telegraph (Amendment) Act 2006, which governs 141 Press Trust of India. (2017, 23 June). Government plans a new social media policy to check anti-India activities. Economic Times. www.tech.economictimes.indiatimes.com/news/internet/ government-plans-a-new-social-media-policy-to-check-anti-indiaactivities/59276445; Hindustan Times. (2016, 24 February). Govt to monitor social media 24x7 to counter negative comments, blogs. Hindustan Times. www.hindustantimes.com/india/govt-tomonitor-social-media-24x7-to-counter-negative-comments-blogs/ story-6Phot5wXXtMbzTYTKpm9kI.html 142 Puri, N. (2013, 9 March). India sets up social media monitoring lab. ZDNet. www.zdnet.com/article/ india-sets-up-social-media-monitoring-lab 143 Bhatia, G. (2016). Offend, Shock, or Disturb. New Delhi: Oxford University Press. 144 Xynou, M. (2017, 30 January). India’s Central Monitoring System (CMS): Something to Worry About? Centre for Internet and Society. https://www.cis-india.org/internet-governance/blog/ india-central-monitoring-system-something-to-worry-about telecom service providers (including ISPs), and the IT (Amendment) Act 2008, which has wider application. Both Acts penalise the unlawful interception of communications (e.g. sections 24 and 25 of the Telegraph Act; sections 43 and 66 of the IT Act). They also permit interception by the state under specific conditions. Section 5(2) of the Indian Telegraph (Amendment) Act 2006 allows for such interception “on the occurrence of any public emergency, or in the interest of the public safety,” provided that “it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.” The Indian Telegraph Rules 2007 specify, in rule 419A, that in normal circumstances, such interception can only be ordered by officers of the rank of Secretary, either in the Ministry of Home Affairs, where the central government is concerned, or in the Home Department, where a state government is concerned. Moreover, such an order can only be issued “when it is not possible to acquire the information by any other reasonable means” and has to contain reasons. The rule further includes a range of safeguards to be observed during interception, as well as imposing limits on periods of both data collection and retention. Most of the provisions made under the Indian Telegraph Act and its attendant rules have been retained in the IT Act. However, there is one significant difference: section 69 of the IT (Amendment) Act 2008 has done away with the requirement for “a public emergency” or “the interest of the public safety”, while adding “the defence of India” and “for investigation of any offence” to the list of grounds on which surveillance is allowed. As Prashant Iyengar has pointed out, the requirement of “a public emergency” or a clear threat to “public safety” as preconditions had earlier put a clear damper on the Indian government’s ability to legally intercept communications.145 In PUCL v. Union of India, referring to the Indian Telegraph Act, the Court had observed: [E]ven if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or in public order or for preventing incitement to the commission of 145 Iyengar, P. (2011). Privacy in India - Country Report - October 2011. Bangalore: Centre for Internet and Society. https://ssrn.com/ abstract=2302978 INDIA / 79