Governance over-reach

Surveillance must require authorisation from a magistrate

The Union home ministry has authorised 10 central agencies involved in security and intelligence to intercept, monitor and decrypt “any information generated, transmitted, received, or stored in any computer resource”. The issue is certainly not specific to the present government, as this power is claimed under Section 69 of the controversial Information Technology Rules of 2009 — other parts of which have been read down by the courts. The home ministry has since claimed that “no new powers have been conferred to any of the security or law enforcement agencies”, and that each case will continue to be approved by the Union home secretary. This specific clearance in each case is obviously meaningless because the record shows about 100 clearances daily on average. The scrutiny is therefore on paper only, and there is no safeguard against misuse. Also, the rules provide for tapping to start, with the home secretary’s clearance to be obtained within a week. Since most people don’t know when their phones are being tapped, the agencies can tap at will without clearance. 

 

In the order as released, what is most objectionable is the blanket authorisation being given to security agencies — which include not just intelligence agencies responsible for domestic security, such as the Intelligence Bureau, but also foreign-focused agencies that have no business snooping on Indian citizens such as the Research & Analysis Wing. The Delhi Police and tax agencies have also been given untrammelled powers of surveillance. This is clearly overkill. In any well-constructed system of surveillance that balances public security and individual rights, the decision to snoop cannot be left to any agency’s own volition. There must be a process in which a reason is given and in which, afterwards, responsibility can be assigned. Such invasion of privacy should need authorisation from a magistrate, who has to record the specific reasons in each case.

The government may well be running short of capacity for its present system. The courts have made the home secretary accountable for all surveillance by central agencies and in 1996 created a monitoring committee. Since then, the occasions for digital surveillance have grown manifold. But the only way to deal with a lack of capacity for due process is to increase capacity available, not to short-circuit due process. This should be considered an opportune moment to reform India’s intelligence apparatus and bring it on a sound legal and constitutional footing. There is no real basis in law for many of the agencies named in the order from the home ministry; they were simply inherited from the British Raj. Nor are they under parliamentary scrutiny, as is the case with their counterparts in every major liberal democracy. Nor are their actions subject to judicial control or approval, either in open or closed courts. It is impossible to suppose that a few overworked bureaucrats are able to provide the needed accountability for surveillance. Such officials of the executive are in any case under no compulsion to respect or even consider an individual’s right to privacy. No doubt this order will be challenged in the courts. This would be a good opportunity for the government to explain how it intends to construct a modern, effective and accountable structure for the surveillance required to maintain national security.