The Supreme Court on Monday sought the C response to petitions challenging a Home Ministry notification authorising ten central agencies to intercept, monitor and decrypt data on computers. The top court, in its notice, set a deadline of 6 weeks within which the government is to respond to this controversial decision.
The petitions argue that Ministry of Home Affair’s (MHA) blanket surveillance order is ultra vires to the parent legislation, Section 69 of the Information Technology Act, 2000, which means that it empowers snoop agencies beyond those intended and provided for by the existing law.
The petitioners have also alleged that the notification gives the state the right to access all communication, computer and mobile data and “use it to protect political interest and object of the present executive political party”.
What did the notification say
The government on December 20, 2018, equipped ten of its investigating agencies with powers of “interception, monitoring decryption of any information generated, transmitted, received or stored in any computer”
under the IT Act, 2000.
The agencies authorised to intercept computers are the Intelligence Bureau, National Investigation Agency, Enforcement Directorate, the Central Board of Direct Taxes (for Income Tax Department), Narcotics Control Bureau, Central Bureau of Investigation, Directorate of Revenue Intelligence, the Research and Analysis Wing, Directorate of Signal Intelligence (in service areas of J-K, North East and Assam) and the Delhi Police.
Earlier, only the home ministry could scan calls and emails of people.
What about the PILs
In the wake of the uproar from the opposition and privacy activists that followed, a group of politicians and lawyers moved top court and filed five petitions to challenge the Home Ministry’s order on grounds of “snooping”.
The petitioners include TMC MLA Mahua Moitra, lawyer Shreya Singhal, advocate Amit Sahni, apex court lawyer Manohar Lal Sharma, and the New Delhi-based Internet Freedom Foundation (IFF), who submitted a compendium of PILs alleging that the order directly contradicted the fundamental right to privacy and must be immediately in the interest of justice.
The hearing on these pleas came up for examination before Chief Justice of India Ranjan Gogoi on Monday.
Singhal, who had successfully challenged Section 66 of the IT Act a few years ago, said after the SC ruling, “The order by the Home Ministry violates privacy and we so wanted a stay on it. The court has issued to the Home Ministry… After six weeks the Supreme Court will look into our prayer on staying the notification.
Excerpts of some petitions
Citing India’s covert survelliance system, the PIL by IFF urges the top court to function as the last bulwark of liberty in cases like this. Like TMC lawmaker Mahua Moitra, the privacy rights watchdog also challenged the constitutional validity of Section 69 of the IT Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring Decryption of Information) Rules 2009, claiming that the MHA has essentially activated an unconstitutional surveillance mechanism with its December notification.
Moitra’s petition read, The unbridled discretion granted to the named Security and Intelligence agencies to access information under section 69(1) amounts to a breach of fundamental right to free speech and expression guaranteed under Article 19(1)(a) and right to privacy and liberty under Article 21 of the Constitution of India.” She also highlights and the effective changes this order brings in its train, especially with regard to the extra-surveillance powers it grants to an agency.
Rule 4 was never meant to allow further delegation of the authority to monitor, intercept or decrypt, which could be exercised by the Competent
Authority aloneand that toounder safeguards provided under the IT Act and the Rules, the petition notes.
Creating a surveillance state
The latest controversy over surveillance, a issue across the world, revives a longstanding debate on privacy. It began with a similar mandate by the C, involving the databasing of biometric information in an exercise to provide every Indian citizen with a unique identification or Aadhaar number.
The questionable methods of collecting and storing personal information has resulted in numerous instances of security breaches and witnessed a heady battle between crusaders for privacy and the Centre. The Supreme Court, last year, lifted the mandate on registering or furnishing Aadhaar details in a historic verdict.
Vesting investigating agencies with similar boundless powers can prove to be equally damaging to democracy. The MHA, however, claims that the rules to monitor and intercept personal data on any computer system were framed under the UPA government in 2009.
Prarthana Mitra is a staff writer at Qrius