Why Five Petitions Are Challenging the Constitutional Validity of India's Surveillance State

The Supreme Court has sought the Centre's Response on a clutch of petitions against a recent snooping notification issued by the home ministry.

New Delhi: The Supreme Court on Monday issued a notice to the Centre on a set of petitions challenging the government’s notification authorising ten central agencies to intercept, monitor and decrypt any computer system.

The apex court sought the Centre’s response within six weeks.

Five petitions filed in the Supreme Court challenging the government’s December 20 notification came up for hearing before Chief Justice Ranjan Gogoi.

The petitions are by Trinamool Congress MLA Mahua Moitra, Shreya Singhal, who successfully challenged Section 66 of the IT Act a few years ago, Amit Sahni, advocate M.L. Sharma and the New Delhi-based Internet Freedom Foundation (IFF).

Broadly-speaking, most of the petitions make the argument that the government order and the underlying legislation don’t satisfy the test of proportionality put forth by the right to privacy judgement by the Supreme Court.

According to the government’s notification, 10 central probe and snoop agencies are now empowered under the Information Technology (IT) Act, 2000, for computer interception and analysis, home ministry officials said.

Also Read: Is the Modi Govt Snooping on You? Here Are Five Questions You Should Be Asking

The agencies authorised to intercept computers are the Intelligence Bureau, National Investigation Agency, Enforcement Directorate, the Central Board of Direct Taxes (for Income Tax Department), Narcotics Control Bureau, Central Bureau of Investigation, Directorate of Revenue Intelligence, the Research and Analysis Wing, Directorate of Signal Intelligence (in service areas of J-K, North East and Assam) and the Delhi Police.

Moitra’s petititon called the notification “violative of Articles 14, 19(1)(a) and 21 of the Constitution of India and/or ultra vires Section 69 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.”

“The unbridled discretion granted to the named Security and Intelligence agencies to access information under section 69(1) amounts to a breach of fundamental right to free speech and expression guaranteed under Article 19(1)(a) and right to privacy and liberty under Article 21 of the Constitution of India. Such violations need not be manifested in the form of physical coercions or restraints but the very existence of such unregulated surveillance authority in the form of a central government order / permit results into the said violations of fundamental rights and freedoms under Part III of the Constitution of India,” her petition, which was argued by Abhishek Singhvi, said.

After the notification was issued, opposition parties said it violated privacy, while Jaitley said that the rules were framed under the Congress-led UPA government in 2009.

Moitra’s petition highlights and criticises the effective changes that the MHA notification brings with it. Specifically, it targets the fact that Rule 4 only allowed government officials to authorise an agency to perform the technical task of surveillance, whereas the new notice seeks to expand that scope.

“Rule 4 was never meant to allow ‘further delegation’ of the authority to monitor, intercept or decrypt, which could be exercised by the Competent
Authority alone – and that too – under safeguards provided under the IT Act and the Rules,” the petition notes.

“The impugned order seeks to dilute the very basis of the safeguards and, instead, generically by one stroke of pen authorizes multiple agencies to monitor, decrypt and intercept “any information” from a computer resource. This goes way beyond the powers which were intended and provided for in Section 69 of the Act and the Rules. The impugned notification is therefore ultra vires the parent legislation and the extant Rules.”

By allowing delegation, the Modi government has diluted the “very letter and spirit of the original intent of the legislature”, the PIL notes, adding that in today’s world, it is imperative that “power is exercised with utmost caution and not eroded by scattering it where it cannot be controlled”.

IFF petition

In its petition, the Internet Freedom Foundation — which has also challenged the constitutional validity of Section 69 of the IT Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 — says the MHA notification has “essentially activated” an “unconstitutional surveillance mechanism” that was provided for by provisions of the IT Act.

The IFF notes that the Supreme Court will have to function as the “last bulwark of liberty in cases” like this, because India’s current surveillance system is “covert”, leading to little scope to approach a court with specific examples.

“…While secrecy may be an inherent trait, and even the paramount objective for carrying out electronic surveillance, the IT Act  and 2009 Rules have, while excessively delegating to the Executive, failed to instil adequate safeguards to prevent abusive, excessive, and arbitrary exercise of its powers. In particular, the ‘necessary or expedient’ standard adopted under sub-clause (1) of Section 69 to authorise electronic surveillance woefully falls short of ‘the test of
proportionality’ – a sine-qua-non to curtail fundamental rights under Articles 19(1)(a) and 21,” the petition notes.