Value Added Article: Are India’s Laws on Surveillance a Threat to Country | Category – Constitution and Polity | Source – The Hindu

Relevance: GS Paper II (Polity and Governance)

Source:

The Hindu - Chrome IAS


 

Why has this issue cropped up?

Recently, the Ministry of Home Affairs issued an order granting authority to 10 Central agencies, to pry on individual computers and their receipts and transmissions.


Problems with the govt’s order

  • This is seen as an extreme measure to deny people their right to privacy.
  • Further, internal security is the main excuse being given for issuing such a directive. However, agencies such as the Delhi Police, the CBI, and the Directorate of Revenue Intelligence cannot be strictly termed as organisations concerned with homeland security.
  • With an unquenchable thirst for information, the government at the Centre and most governments in the States have set out on a surveillance race. This will be the fastest process to turn India into a police state.
  • An individual may not even know if her electronic communications are being intercepted/monitored. If such surveillance comes within her knowledge, due to the obligation to maintain confidentiality and provisions in the Official Secrets Act, she would not be able to know the reasons for such surveillance. This can make surveillance provisions prone to misuse.
  • In the absence of judicial or legislative oversight, such powers result not only in a disproportionate restriction on individual fundamental right to privacy, but also have far-reaching consequences for other freedoms — a chilling effect on the freedom of speech and association and democratic participation.
  • Cybersecurity experts caution that it’s not possible to create a “back door” decryption to target one individual, and that tampering with encryption can compromise security for all.

Is the Right to Privacy sacrosanct?

  • The Constitution of India guarantees every citizen the right to life and personal liberty under Article 21.
  • The Supreme Court, in Justice K.S. Puttaswamy v. Union of India (2017), ruled that privacy is a fundamental right. But this right is not unbridled or absolute.
  • The Central government, under Section 69 of the Information Technology (IT) Act, 2000, has the power to impose reasonable restrictions on this right.

The centre’s proposal is justified

  • Social media has brought new challenges for law enforcement agencies, including inducement for recruitment of terrorists, circulation of obscene content, spread of disharmony, and incitement to violence.
  • Communication arenas in the digital age are mostly controlled by transnational corporations. There have been several cases where the police have expressed their inability to trace offenders because intermediaries have refused to cooperate.
  • To bring justice to victims of online gender-based violence, the police must obviously do what may be necessary to marshal evidence and trace the offender.
  • In today’s times, when fake news and illegal activities such as cyber terrorism on the dark web are on the rise, the importance of reserving such powers to conduct surveillance cannot be undermined.
  • In People’s Union for Civil Liberties v. Union of India (1996), the Supreme Court had set rules for the judicious exercise of surveillance and interception in phone tapping cases. The same fundamental principles should hold good in cyberspace too
  • Thus, in exceptional circumstances, the right to privacy can be superseded to protect national interest.

Way forward

  • The Central government passed the IT Rules, 2009, allow the Secretary in the Home Ministry/Home Departments to authorise agencies to intercept, decrypt or monitor Internet traffic or electronic data. In emergency situations, such approval can be given by a person not below the Joint Secretary in the Indian government.
  • There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. Any action without such evidence or basis would be struck down by courts as arbitrary, or invasive of one’s right to privacy.
  • The framework of the prescribed procedure needs to be adhered to, and its implementation needs conformance, both in letter and spirit.
  • The government needs to increase accountability and responsibility, and infuse reasonable checks and balances in exercising these surveillance powers.
  • The recent order passed by the Central government is within the ambit of its powers under Section 69 of the IT Act. However, it’s implementation will have to be tested on the grounds of reasonableness, fairness, proportionality and judicious exercise of powers.
  • The role of the review committee is quite significant. The committee will aid in checking any arbitrariness in the exercise of these powers.
  • All measures within such a framework must pass the test of proportionality specified by the right to privacy judgment.
  • They must also account for how digital technologies are implicated in the problems of opacity, arbitrariness and impunity that characterise the rules and current practices of surveillance.
  • Intermediaries must be mandated to locate servers in India.
  • Rules for digital evidence collection must be specific to technological applications.

Conclusion

The Centre’s attempt to tinker with the Intermediary Rules seems to suggest a cart-before-horse approach, with little thinking on how its social and technological fallouts will impede the rights that make a robust democracy.