Government Defends Surveillance Order as critics call it a “police state” action

The Ministry of Home Affairs, in an order dated December 20, 2018, issued an order which enlists ten “Security and Intelligence agencies” which are now granted powers of “interception, monitoring and decryption of any information generated, transmitted, received or stored in any computer resource.” The order has been issued within the purview of powers granted to the Government under Section 69(1) of the Information Technology Act, 2000 (IT Act) read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

The following agencies have been granted the apparent surveillance powers:

1. Intelligence Bureau;
    
2. Narcotics Control Bureau;
    
3. Enforcement Directorate;
    
4. Central Board of Direct Taxes;
    
5. Directorate of Revenue Intelligence;
    
6. Central Bureau of Investigation;
    
7. National Investigation Agency;
    
8. Cabinet Secretariat (RAW);
    
9. Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only);
    
10. Commissioner of Police, Delhi.

This order has been dubbed by critics and the Opposition as one with the intent to create a mass surveillance mechanism which infringes the Right to Privacy of the citizens. The Opposition has accused the Government of trying to create a ‘police state’.^[1]

Takeaways:

1. It is to be noted that this is the first of its kind notification issued under Section 69(1) of the IT Act. The section lays down the following grounds on which such surveillance can be done for:
   • Preservation of India’s sovereignty or integrity.
      
   • Security of the state
      
   • Public order
      
   • Maintaining friendly relations with other countries
      
   • Preventing offences relating to all the above grounds from being incited or committed
      
   • Criminal investigations
      
2. ​​​​​​​The Right to Privacy was held to be a Fundamental Right by the Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors., Writ Petition (Civil) No. 494 of 2012. But such right is not absolute and is subject to restrictions if the due procedure is followed. As of now, there are concerns that the above-mentioned grounds may be used by these agencies to violate the Right to Privacy as was done in the US which was revealed by the ex-CIA contractor and whistleblower Edward Snowden.^[2]
    
3. Many countries like the US, UK, France, Germany and Australia have similar provisions enabling law enforcement agencies to seek access to data or communications under certain circumstances.^[3] It is to be noted that the US has a special judicial organ known as the Foreign Intelligence Surveillance Court (FISA Court) which determines whether the agency requesting for the authority for surveillance has a valid ground to do so. In India, the Home Secretary has the authority to decide on the same as per rule 4 of the Information Technology ( Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. There does not exist an independent judicial body like the FISA Court to determine the validity of granting authorisation like the present order.
    
4. According to the section 69 (4) of the IT Act, any “subscriber or intermediary or any person who fails to assist the agency shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.” Hence, by the inclusion of the ten agencies, it is being argued that these agencies will coerce the intermediaries to share private information about its citizens which would amount to a clear violation of Right to Privacy.
    
5. The MHA in an attempt to defend its order issued a press release dated December 21, 2018[1]  and clarified that the order dated December 20, 2018 does not grant new powers to any security or law enforcement agencies neither does it exempt the aforesaid agencies from complying with the provisions of the Information Technology ( Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
    
6. This order of the Government has been challenged by an Advocate Amit Sahni who has stated that “December 20 order of the MHA be quashed and strict redressal mechanism be put in place to resolve the grievance of any citizen, in case her or his right to privacy is infringed upon by such like order…”^[4]

^[1]HT Correspondent. “Government’s Surveillance Order Key to National Security: MHA Officials.” https://www.hindustantimes.com/, Hindustan Times, 27 Dec. 2018, www.hindustantimes.com/india-news/government-s-surveillance-order-key-to-national-security-mha-officials/story-4gNFGn0hyUuz0XrEDuq9NJ.html.

^[2] “Edward Snowden: Leaks That Exposed US Spy Programme.” BBC News, BBC, 17 Jan. 2014, www.bbc.com/news/world-us-canada-23123964.

^[3]Supra Note 1.

^[4] “Advocate Challenges MHA’s Surveillance Order Before SC.” Live Law, 24 Dec. 2018, www.livelaw.in/advocate-challenges-mhas-surveillance-order-before-sc/.