LIJDLR

ENCRYPTED BUT NOT FREE: STATE SURVEILLANCE, SECTION 69 IT ACT, AND THE FUTURE OF DIGITAL PRIVACY IN INDIA

Arush Kalsotra, B.A. LLB (H), 6th Semester, Student at Himachal Pradesh National Law University, Shimla (India)

This paper examines the expansion of State surveillance and digital censorship in India through the statutory architecture of the Information Technology Act, 2000, particularly Sections 69, 69A and 79(3)(b), and tests that architecture against the constitutional standards of privacy, proportionality, free speech and chilling effect. Adopting a doctrinal and case-study-based methodology, it analyses primary legal materials, including the IT Act, the 2009 Interception Rules, the Digital Personal Data Protection Act, 2023, and leading decisions such as Shreya Singhal, Puttaswamy, Anuradha Bhasin and the Kunal Kamra litigation. The paper argues that safeguards which justified executive blocking and interception powers in constitutional doctrine have weakened in practice because surveillance and takedown decisions remain largely executive-controlled, opaque and difficult to challenge. The analysis studies specific episodes to demonstrate this pattern: the 2018 authorisation of ten agencies to intercept, monitor and decrypt digital communications; the Sahyog Portal’s use of Section 79(3)(b) to route takedown demands outside the procedural discipline of Section 69A; the litigation concerning the government Fact Checking Unit in Kunal Kamra; the proposed Karnataka misinformation framework; and the rollback of end-to-end encryption on Instagram. These examples show how broad statutory language, short compliance windows, absence of judicial oversight and platform dependence can cumulatively chill protected speech and weaken informational privacy. The paper concludes by proposing targeted reforms: prior or prompt judicial scrutiny for Section 69 orders, auditable retention of interception records, restoration of Section 69A-style notice and reasoned-order safeguards for takedowns, constitutionally narrow misinformation regulation, meaningful consent for encryption rollbacks, and a national encryption policy grounded in Article 21.

📄 Type 🔍 Information
Research Paper LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 2, Page 2736–2757.
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