NEWS: With increasing technological capacity that the intelligence community has provided to the government, there is growing fear of tyranny that can be imposed by the government.
- There have been allegations of spying by the Government of India using spyware Pegasus.
SURVEILLANCE IN A DEMOCRACY
- The amount of surveillance that should be there in a democracy is always a point of debate. Experts feel just like salt, a small amount of surveillance is necessary for the health of the body politic, however its excess is dangerous.
- Excessive and unaccountable surveillance imperils privacy, freedom of thought, of speech, shatters bedrock of rule of law and has a chilling effect on people’s behaviour.
- There is a need to balance liberties with national security, but it should not come at the cost of the very liberties such security is supposed to allow us.
- Government claims of all its surveillance being authorised and justified is not correct because of such surveillance being not proportionate. They are further prone to misuse for personal and political gain, and to harass opponents.
EVIDENCES OF SURVEILLANCE
Numerous examples of unlawful surveillance which seem to be for political and personal gain and have nothing to do with national security or organised crime can be found in India. However very few cases have been held legally accountable for unlawful surveillance.
- For example: In 2012 in Himachal Pradesh, the new government raided police agencies. It found over a lakh phone conversations of over a thousand people. The conversation was mainly of political members, and many senior police officials, including the Director General of Police (DGP), who is legally responsible for conducting phone taps in the State.
- Not only state actors but even Non-state actors such as the Essar group, have also been shown to engage in illegal surveillance.
- K.K. Paul, then the Governor of Meghalaya noted complaints by telecom operators that private individuals were misusing police contacts to tap phone calls of opponents in trade or estranged spouses.
LAWS DEALING WITH SURVEILLANCE IN INDIA
- Interception and monitoring of communications are authorised under Section 92 of the CrPC (for call records, etc), Rule 419A of the Telegraph Rules, and the rules under Sections 69 and 69B of the IT Act. However, there is a lack of clarity over application of these laws.
- In 2018, nine central agencies and one State agency were authorised to conduct intercepts under Section 69 of the IT Act.
- There is unclarity over which entities count as intelligence and security agencies. Whereas Intelligence Organisations Act, which restricts the civil liberties of intelligence agency employees, lists only four agencies, RTI Act lists 22 agencies as “intelligence and security organisations established by the central government” that are exempt from the RTI Act.
- Various surveillance programs such as CMS, TCIS, NETRA, CCTNS are problematic because they don’t have any authorisation by any statute. They violate K.S. Puttaswamy judgment (2017) which held that any invasion of privacy could only be justified if it satisfied three tests which are:
- Firstly, restrictions must be by law.
- Secondly it must be necessary and only if other means are not available and proportionate.
- Thirdly, it must promote a legitimate state interest (e.g. national security).
RECOMMENDATIONS REGARDING SURVEILLANCE
To ensure accountability various recommendation has been made by various persons/committees:
- Ex Vice-President Hamid Ansari has called for creation of a standing committee of Parliament on intelligence and legislative basis for India’s agencies.
- Institute for Defence and Strategic Analysis (Ministry of Defence-funded think-tank) in its report “A Case for Intelligence Reforms in India” recommended that intelligence agencies in India must be provided a legal framework for their existence and functioning. The committee has further recommended that functioning of these intelligence agencies must be under Parliamentary oversight and scrutiny.
- Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies, National Intelligence Agency being an exception, are potentially unconstitutional since they are not constituted under a statute passed by Parliament.
- Reforms are needed in India which can professionalise intelligence gathering, bring intelligence agencies under parliamentary oversight and ensure civil liberties and rule of law.