Govt order giving agencies vast snooping powers challenged in Supreme Court

Legal experts have said that the powers given to agencies under Section 69 of the IT Act need to be looked at afresh in view of the top court declaring the Right to Privacy as a fundamental right

The December 21 notification of the central government giving ten agencies wide-ranging powers to decrypt information stored on any computer in the country in the interest of national security has been challenged in the Supreme Court. The matter, however, has been denied an urgent hearing and will be listed according to the usual roster when the apex court reopens on January 2. 

The said notification has been challenged by advocate M L Sharma who has said in his petition that the said notification should be set aside as it violated Section 21 of the Constitution and ran contra to the nine-judge Constitution Bench which had declared Right to Privacy as a fundamental right. The petition also says that the government's new order could be used to "fix innocent citizen of India" and the incumbent government could use it for their political benefits since the general elections are approaching.

On December 21, the cyber and information security division of the Ministry of Home Affairs (MHA) had allowed agencies such as the Intelligence Bureau, Enforcement Directorate (ED), Central Bureau of Investigation (CBI), and the Commissioner of Police, Delhi, among others, powers to intercept, monitor and decrypt any information generated, transmitted, received or stored in "any computer". Relying upon Section 69 (1) of the Information Technology (IT) Act, the government had also said that any subscriber or service provider in charge of any computer resource is bound to extend all facilities and technical assistance to these agencies, failing which they would have to face a seven-year jail term and be fined.

Legal experts have, however, said that the powers given to agencies under Section 69 of the IT Act need to be looked at afresh in view of the top court declaring the Right to Privacy as a fundamental right. 

"It runs contra to Supreme Court judgment in Puttaswamy vs Union of India. The apex court will have to look afresh at Section 69 and the wide-ranging powers under it. The chances of such powers being abused are very high," cyber law expert Pavan Duggal said.

In 2015, the top court had, while striking down Section 66 A of the IT Act, upheld the government's powers under Section 69 of the same Act, but with reasonable restrictions. Later in 2018, a nine-judge Constitution Bench had, while hearing the Puttaswamy vs Union of India case, declared the Right to Privacy as a fundamental right. 

The petition also seeks that the top court should prohibit the government from initiating any criminal cases or investigation against individuals under Section 66 and 67 of the Information Technology Act (IT) of 2000. Section 66 of the IT Act recommends fine of up to Rs 500,000 and jail term of up to three years for hacking, receiving a stolen computer, using the digital identity of others, cheating, cyber terrorism, and denying computer access to any authorised personnel.

Section 67, on the other hand, recommends a stricter jail term of up to seven years and fine of up to Rs 1 million for crimes such as publishing images containing a sexually explicit act or conduct, child pornography, and failure on part of service providers to maintain records.     

What the petition says

• MHA order allowing agencies to initiate action without investigation should be quashed
• Order is in contradiction to basic principles of Code of Criminal Procedure
• It is against Article 21, which guarantees right to life, personal liberty
• Govt may use order to target citizens for political benefits
• Govt move is against SC judgement on Right to Privacy