Recent news and Governments Stance

  • The Ministry of Home Affairs (MHA) has issued an order authorising ten security and intelligence agencies of the country to access any information stored in any computer for the purpose of monitoring, decrypting and interception.
  • The 10 agencies include Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence;, Central Bureau of Investigation, National Investigation Agency Cabinet Secretariat (RAW), Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only), and Commissioner of Police, Delhi.
  • The ministry has vested the authority on the agencies under Section 69 of the Information Technology Act, 2000 and Rule 4 of the Information Technology Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
  • The order mandates for a subscriber or service provider or any person in charge of the computer resource to extend technical assistance to the agencies.
  • Non-compliance will invite seven-year imprisonment and fine.

Legal Provisions against snooping

Historically, snooping in India has been justified under the purview of maintaining “national security.” Even before the internet had arrived, the Indian government was intercepting communications under colonial era laws that had been retained post independence.

The Indian citizen is entitled to the fundamental right embodied in Article 21 of the constitution. He shall not “be deprived of his life or personal liberty except according to procedure established by law”. Surveillance, phone tapping and mail snooping are clear violations of ‘personal liberty’

Rules relating to section 69 which were made in 2009 authorises the central government or a state government or any of its officers to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource.

  • The Section 5(2) of the Indian Telegraph Act, 1885 and Section 26 of the Indian Post Office Act, 1898 authorizes telephone tapping in India.But no rules were framed under this section.
  • In PUCL case 1997, the apex court held that unlawful tapping violates Article 21 of constitution Right to privacy and Article 19 (1) (a) Right to Free speech.

Concerns against the recent government move

Only data in motion could be intercepted earlier. But now data revived, stored and generated can also be intercepted as powers of seizure have been given. This means not just calls or emails, but any data found on a computer can be intercepted. The agencies will also have powers to seize the devices. The sweeping powers given to agencies to snoop phone calls and computers without any checks and balances is extremely worrisome. This is likely to be misused.

Way forward

  • Ensuring national security is important but formulating autocratic rules/laws and violating essential individual rights is not appreciated
  • Such cases are sensitive where stakeholders are national security vs individual security . We must draw a line on the sand, to clarify both of the things
  • Securing nation at the cost of individual dignity and privacy is a matter of concern
  • Totally ignoring SC judgement will also weaken the apex court reputation
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