Ministry of Home Affairs (MHA) recently authorised 10 Central agencies to intercept, monitor, and decrypt online communications and data.
The notification was described as an incremental step towards a surveillance state by many experts.
However, the government defended that the notification created no new powers of surveillance.
It was only issued under the Information Technology Rules sanctioned in 2009.
It further mentioned that every specific surveillance requests had to be authorised by the MHA in accordance with law.
What are the concerns?
The existing surveillance framework is carried out by -
Telephone surveillance is sanctioned under the 1885 Telegraph Act (and its rules)
Electronic surveillance is authorised under the 2000 Information Technology Act (and its rules)
Bureaucratisation - Under both these acts, surveillance requests have to be signed off by an official who is at least at the level of a Joint Secretary.
However, these decisions about surveillance are taken by the executive branch (including the review process), with no parliamentary or judicial supervision.
Opacity - An individual will almost never know that he/she is being under surveillance.
Thus, finding out about surveillance and then challenging it before a court, is a near-impossibility.
Vagueness - The surveillance regime is vague and ambiguous which includes very wide phrases such as “friendly relations with foreign States” or “sovereignty and integrity of India”.
Faster clearance - There is almost no information available about the bases on which surveillance decisions are taken, and how the legal standards are applied.
A 2014 RTI request revealed that, on an average, 250 surveillance requests are approved every day.
This shows that approvals are being cleared without an independent application of mind.
What should be done?
The right to privacy is not absolute and hence surveillance is essential to ensure national security and pre-empt terrorist threats.
However, there must be a parliamentary oversight over the surveillance agencies that conduct surveillance.
All surveillance requests must necessarily go before a judicial authority, which can apply an independent legal mind to the merits of the request.
Every surveillance request must mandatorily specify a probable cause for suspicion and the proposed target of surveillance.
Also, evidence obtained through unconstitutional surveillance must be statutorily stipulated to be inadmissible in court.
Also, surveillance requests can be subject to judicial review, provided a lawyer to present the case on behalf of the target of surveillance.
The Right to privacy judgment has taken a firm stand on the side of fundamental rights.
Citizens’ initiatives such as the Indian Privacy Code have also proposed legislative models for surveillance reform.
Thus, it is right time for the parliament to take these measures forward and ensure a balance between security of the state and privacy of the individual.
