Surveillance notification draconian, creates sense of police state: Experts

Govt notification could be challenged in Supreme Court, say experts

The central government has stirred a hornet’s nest with a notification that gave ten central government agencies wide ranging powers to intercept and decrypt information stored on any computer in the country in the interest of national security. The cyber and information security division of the Ministry of Home Affairs (MHA) 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".

Apart from giving sweeping powers to these agencies without having proper check and balances in place, the order also flies close to an indirect contempt of Supreme Court (SC) judgement declaring Right to Privacy a fundamental right. It creates sense of police state, experts said.

Though the government is well within its rights to issue the notification, the powers under the provision need to be looked afresh by the government in view of apex court’s judgement, Pavan Duggal, President of Cyberlaws.Net said.

“It runs contra to SC judgment in Puttuswamy vs UOI. 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,” Duggal said.

In August this year, the apex court had while deciding on retired judge Justice K S Puttuswamy’s plea against the central government had said that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the constitution.

The new notification from MHA also leaves very little room for the accused to wriggle out of the situation as it will be a huge burden on one person to prove they are not the enemy of the state, Salman Waris, the head of TMT and IP practice groups at TechLegis, said.

“This is a huge burden on those who will be arrested because it will be up to them to prove their innocence which is against the basic assumption that every person is innocent until proven otherwise. It is also against the right to life and liberty of individuals. To use national security as a garb for the draconian order creates a lot of doubt,” he said.

Relying upon Section 69 (1) 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 to issue the notification, the government has 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.

“The general rule is that state agencies get such information only on a need to know basis. These agencies had anyway access to such information on a case to case basis. The timing of the notification is also circumspect as it is so close to general elections,” Waris said.

The fact that nearly ten agencies have been given the powers to collect and collate data can also become self-defeating with time given the sheer volume of data that will be collected, Duggal said.

“By giving such massive powers to agencies, you are assuming every person in this country is a criminal. The checks and balances need to be there,” he said.