Digital

India Gears Up to Defend Internet Rights Regime as it Operationalises Mass Surveillance Project

New topics in India’s draft UPR national report include a section on state control of the Internet, with reference to the delayed Centralised Monitoring System.

India says its legislating a right to privacy to the UN. But is it really? Credit: PTI

India says its legislating a right to privacy to the UN. But is it really? Credit: PTI

Note: This article was first published on February 9, 2017 and is being republished today as India’s human rights record will be examined at the UN Human Rights Council for the third time under the Universal Periodic Review process on May 4. Attorney General Mukul Rohatgi will be leading the Indian delegation.

New Delhi: In three months, India will be under the microscope of the international community on its domestic human rights performance by taking part in Universal Periodic Review process for the third time.

Reflecting the fact that Internet-related issues have now entered mainstream discourse, with digital policy now becoming a mainstay of the NDA government’s agenda, New Delhi’s self-appraisal publication will for the first time talk about online censorship, surveillance and privacy rights.

Notably, a draft of the publication states that India’s mass surveillance project, the Centralised Monitoring System, will be fully operational by the first quarter of 2017.

The UPR review process is based on three documents, two of which are compilations of information provided by UN bodies, special procedures and civil society organisations. The third one – the national report – has to be submitted by the state under review of its domestic human rights laws and implementation.

India made its draft national report public in January, as part of the process to finalise its content. While the ministry of external affairs is the coordinator for the UPR exercise, the report has been compiled with the assistance of the National Law University and line ministries.

The outline of the report were broadly similar to the previous editions, but with some tweaking which include inclusion of ‘cross-cutting issues’ such as Inclusive development, Climate Change and “Human Rights and Counter-terrorism”.

A completely new topic introduced in this draft report is on the role of the state in controlling the Internet, with two dedicated sub-sections under the title of “Fundamental Freedoms and Participation in Public and Political Life”. They were part of the overarching framework of “Civil and Political Rights”.

“India recognizes the importance of extending free speech guarantees to activities on the internet,” the report said, before segueing into the need to control “misuse of the Internet for inciting violence, spreading rumours and hatred or committing other illegal activities”.

“In order to prevent arbitrary use of this power to block content on the internet, the Supreme Court of India has put in place various adequate procedural safeguards such as the right to appeal a blocking decision, and the requirement for reasons in writing for issuing a blocking order,” asserted the report. A footnote refers to the Supreme Court’s interim measure in the 2013 landmark case which stopped any arrests under Section 66A of the information technology act; the latter of which was eventually wholly struck down.

CMS now online

The subsequent section in the report is labelled ‘Right to Privacy and Surveillance’, which asserts that the government has an implicit right to surveillance due to security concerns. The government mentions the setting up the “Centralised Monitoring System” to automate the “lawful interception and monitoring of telecommunications” – that is, voice and data records over mobile phones, landlines and internet.

New Delhi reiterates in the draft national report that there are enough safeguards to address “concerns about privacy and freedom of speech”, noting that the surveillance program “furthers” India’s national security interests.

“India believes that its surveillance programme furthers its national security interests, and that safeguards in the law, including safe transmission of content, requirement for authorization from senior officials, and the existence of a Review Committee to oversee such authorisations, are sufficient to address concerns regarding privacy and freedom of speech,” the report stated.

An Oct 2016 stakeholder’s report by the NGO Internet Democracy Project on India’s UPR mentioned the apprehensions about the scope of CMS. “No information has been made available about whose data will be collected, how the collected will be used, or how long the data will be retained,” it pointed out.

The report also states that the CMS “is likely to be completely operationalised in first quarter of 2017”. This is the first time that the government has given a relatively firm date for operationalisation in two years.

In December 2015, Ravi Shankar Prasad had told Lok Sabha that the CMS will be “progressively operationalised from the end of the financial year”. Then in April 2016, Prasad told Lok Sabha in another written answer that the Centre Monitoring Centre in Delhi and the Regional Monitoring Centres in Delhi and Mumbai have been operationalised, while the others are being opened in a phased manner.

Why delays?

Why did it take until 2017 for the system to become wholly operational? Multiple sources tell The Wire that while the major areas of Delhi, Kolkata and Maharashtra were quickly covered, other zones such as Haryana and Madhya Pradesh  (states with notoriously low-quality digital infrastructure) took longer for integration. One senior government official even suggested that delays in quick operationalisation were caused by concern that some of the surveillance equipment was of Chinese-origin, although this could not be independently confirmed by The Wire.

The government in the past, reiterating points made in its UPR document, has also told parliament that privacy concerns emanating from the CMS would be taken care due to oversight mechanism and an “inbuilt” check and balance between the security agencies and provisioning agencies.

The draft report – made public last month – also announces that possible misuse of the surveillance program could be offset by a new law. “However, in recognition of the potential of such a system to impinge on the freedom of speech, the Government is in the process of legislating on right to privacy,” the draft report asserted.

This anodyne reassurance, however, does not present a full picture.

Privacy experts say that there are two major problems with India’s submission to the United Nations. Firstly, the government, through Attorney General Mukul Rohatagi, has argued before the Supreme Court that India has no “fundamental right to privacy”. This argument, crucially and ironically, took place during a three-justice bench hearing on potential privacy violations emanating from the Aadhaar project.

“Violation of privacy doesn’t mean anything because privacy is not a guaranteed right,” the Attorney General was reported to have said. And yet, the Indian government has maintained, both through this UN draft report and at other public forums on the record, that it plans on passing new legislation that will enshrine a right to privacy’.

Secondly, India’s privacy bill has been in cold storage from 2014, according to multiple people with direct knowledge of the matter. For most of 2016 it has gone back and forth between the Department of Personnel and Training (DoPT), which initially drafted the bill back in 2010 just after the Radia tapes controversy, and the Department of Electronics and Information Technology (DeitY) From 2010, however, it is widely understood that various intelligence agencies such as the Intelligence Bureau have resisted full-fledged privacy legislation.

Indeed, over the last six months, officials within Deity feel that amended the Information Technology Act, 2000 is a surer bet. In the wake of demonetisation and various large-scale cyber security incidents, there is already a team that is working on strengthening provisions related to cyber attacks and cybercrime; the thinking appears to be that a few provisions on data protection and surveillance safeguards can be added.

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This is the third time that India’s domestic human rights record will be scrutinised by peers at Geneva – the previous instances had been in 2008 and 2012. India’s date to get her human rights report card is the afternoon of May 4. Both of India’s first and second UPR presentation was led by Attorney General Goolam Vahanvati. The troika of states, who facilitated India’s review, at the first cycle was Ghana, Indonesia and the Netherlands, while Kuwait, Mexico and Mauritius were selected from a draw of lots at the second cycle. The current troika for India’s third UPR cycle are Latvia, South Africa and Philippines.

According to a database maintained by non-profit organisation UPR info, 75 states had made 200 recommendations to India in the last two cycles.

As per UNHRC resolution, states under review can “accept” or “note” recommendations, but cannot reject them. Out of 200 recommendations received in last two cycles, India has accepted 30.5 percent, while the rest fall in the “noted” bracket. This is in contrast to the cumulative acceptance rate of 73.19 percent for all recommendations.

The Geneva-based NGO has developed a method to categorise the recommendations made by the states based on the action requested, ranging in scale from category 1 for minimal action to category 5 which lists specific action.

None of the 61 recommendations that India “accepted” in last two cycles called for a “specific action”. The “noted” recommendation  mainly dealt with taking particular steps like ratification of Convention against Torture, protection against Enforced Disappearances, abolition of death penalty and anti-conversion laws, end of discrimination based on sexual orientation and repeal the Armed Forces Special Powers Act or join the International Criminal Court.

At a debate on UPR process in the human rights council, India’s permanent representative, Ajit Kumar had batted strongly against suggestions to review the mechanism as it was ‘losing its steam’. “We reiterate that the UPR mechanism should not be tinkered with as any such attempt carries the potential of diluting the universal support that it currently enjoys. This process is less than ten years old, and hence, it is too early to pronounce on its ultimate effectiveness or to identify need for reforms,” he said in September 2016.

Kumar strictly objected to any “attempts” to violate the rules and regulation of UPR. “Pressurizing member states to focus on selected areas of concern can turn counter-productive by adversely affecting a country’s voluntary and objective participation,” he added.

Prime Minister Narendra Modi at the United Nations. Credit: PTI

Prime Minister Narendra Modi at the United Nations. Credit: PTI

The senior diplomat made it clear that India’s affection for the UPR process is due to its non-intrusive nature. “The primary reason for universal participation in the UPR process is the policy space this mechanism provides to the member states with regard to their final decisions on the recommendations, taking into account their respective social, political and economic circumstances,” he said.

On the National report, Kumar had said that it was a “matter of concern that some doubts have been raised regarding the content and methodology of national reports prepared by the States under Review.” This was “avoidable” as states “do their utmost” to have a broad consultation to draft the report, he claimed. Besides the inclusion of the section on internet speech and censorship, India’s draft 2017 national report also has some other tweaks from the 2012 edition. There is no section on “recent developments” like in the 2012 report had talked about terrorists attacks and Maoists, with the need for civil society to build pressure to eschew violence.

Unlike the last report, New Delhi does acknowledge the work of human rights defenders, adding that the government is “committed to ensuring a safe working environment for people engaged in promoting and protection of human right”.

But, the 2017 draft report added a qualification: “At the same time, India believes that the activities of the human rights defenders should be in conformity with the legal framework of the land and the rights guaranteed by our Constitution”. With AFSPA expected to be brought up again during the review process, India has a substantive section dedicated to defended the continued application. India has argued that judiciary has upheld AFSPA’s constitutionality and laid down guidelines for exercise of this act.

At the end of the report, a table lists out the government’s specific response and implementation of the specific recommendations obtained in 2012. The Vatican had suggested strengthening the Indian government’s guarantee of “freedom of religion to everyone in the world’s largest democracy”.

Repeating the text from the main body of the report, India responded that anti-conversion laws were an “as an important safeguards against coercion and inducement to convert or reconvert from one religion to another in a multi-religious society”.

Noting that standard operating procedures to deal with communal violence had been laid down, the draft report then informs the international community that steps were being taken to against so-called Gau Rakshaks. “To protect against vigilante groups and miscreants that seek to disrupt law and order and communal harmony under the guise of cow protection, the Government has issued an advisory to states to take strict action in such matters,” it said.

(With inputs from Anuj Srivas)