The Ministry of Home Affairs through its order has granted powers of "interception, monitoring, and decryption of any information generated, transmitted, received or stored in any computer" to 10 central agencies to protect security and sovereignty of India.
The kind of file types included is not limited to just calls or emails. All file types and computers, encrypted or otherwise, will be subject to access, where until now, only ‘data in motion’ was allowed to be intercepted .
The challenge lies in the lack of a due process of law for agencies to perform their duties. At the same time, the order threatens to risk privacy of 130 crore Indians as “unfettered access” to any kind of data without a legal process in place poses great risk of misuse and abuse.
Going strictly by this mandate, the government indeed has greater control that lacks accountability. This is an unprecedented move that will surely be contested before the court of law on the question of constitutionality, as it is the first time such overwhelming scanning powers have been given to agencies.
National security is critical and paramount to India’s prosperity. However, it must be channelled through a judicial and parliamentary process, while at the same time making the agencies accountable, which lies at the core of a functioning democracy.
Surveillance Reforms Needed
In the light of this order, debate around surveillance has once again been ignited. At the moment, India does not have a comprehensive law that governs the functionality of intelligence agencies around the creation, composition and accountability of such institutions. What we do have are provisions in different laws consisting of the Telegraph Act, the Information Technology Act and the CPC that allow the government to ‘lawfully’ initiate search and interception based on certain parameters.
The International Principles on the Application of Human Rights to Communication Surveillance recommends the establishment of “public oversight mechanisms” for state surveillance. Principles of accountability and transparency lie at the heart of such oversight mechanisms that are critical to protect privacy of citizens.
The privacy judgment did outline the tests of legality, legitimate aim, proportionality and procedural safeguards that are fundamental aspects which require qualification by the state before disclosure of citizen’s data.
Whenever individual interception and surveillance is carried out, it should be done through a thorough process that limits the tendency to extend jurisdiction. In other words, surveillance should be checked through procedural safeguards. As no procedural safeguards exist in India, there is an urgent and important need for surveillance reform that brings in judicial and/or parliamentary oversight.
Oversight Mechanism
Our intelligence agencies, although accountable to a different set of laws through regulatory mechanisms, do not come under the purview of an ‘oversight mechanism’, including Parliament or the General Comptroller of India.
Oversight mechanisms are essential as they can help with preventing breaches of national security by ensuring efficiency and effectiveness in the functioning of agencies. Checks and balances for the world’s largest democracy is fundamental and it is imperative that we apply democratic procedures to protect the privacy of our citizens.
The Kargil Committee, formed in 1999 post war, highlighted the need for tasking, monitoring and evaluating the performance of intelligence agencies, and these were considered necessary to protect national security. There is a vacuum as far as the question of due process goes, and Parliament needs to step in to provide oversight to the executive.
Judicial Safeguards
The Supreme Court struck down Sections 33(2) of the Aadhaar Act that previously allowed the disclosure of an individual's Aadhaar identity in the interest of national security, on the instruction of an officer not below the rank of Joint Secretary to the Government of India.
It is critical to note that the Supreme Court, through this judgment, has laid down a clear precedent to the need to have necessary safeguards and oversight mechanisms. The court also emphasised on the opportunity for every citizen to be heard before his/her data is collected. The same principles must be applied in the present context. Citizens deserve a right to know why and for what purpose their data is collected, as enshrined in the privacy judgment that guarantees the Right to Privacy to 130 crore Indians.
Because the argument for law enforcement is often used to dismiss due procedure, a mandate should be issued to make digital evidence collected illegally, inadmissible. Further, to ensure accountability all such orders need to be communicated to the person who was ‘surveilled’.
For a functioning democracy, procedural mechanisms that enhance the functionality of state agencies, as well as checks and balances to prevent extra-judicial use of power, are fundamental in nature, and this is protected by the Constitution.
National security and oversight mechanisms are not mutually exclusive in nature. In fact, both these aspects complement each other and it is paramount to have one with another, something recognised by the 1999 committee. We cannot compromise on our sovereignty and security at any cost and it doesn't have to conflict with our right to privacy.
(Author is founding editor of The Dialogue. Views are personal)
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