23, Jan 2019 | CJP Team
On December 20, 2018, the Ministry of Home Affairs of the Government of India, passed a controversial order authorising ten security agencies to intercept, monitor and decrypt “any information generated, transmitted, received or stored in any computer”. This order that turns India into a virtual surveillance state, is now being challenged in the Supreme Court.
The order that was issued by the Cyber and Information Security Division of the MHA allows the following government agencies to access and keep tabs on data:
- Intelligence Bureau
- Narcotics Control Bureau
- Enforcement Directorate
- Central Board of Direct Taxes
- Directorate of Revenue Intelligence
- Central Bureau of Investigation
- National Investigation Agency
- Cabinet Secretariat (R&AW)
- Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only)
- Commissioner of Police, Delhi
The entire order may be read here:
Given that the order is as per provisions of Section 69 (1) of the Information Technology Act read with rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, the service provider, subscriber or person in charge of the computer will be required to extent all facilities and technical assistance to agencies, failing which they can be incarcerated.
CJP vociferously condemns any and all attempts to curb the constitutionally guaranteed right to Freedom of Speech and Expression as well as the equally important recently acquired Right to Privacy. To support our initiatives, donate now!
The following day (on December 21, 2018), the MHA issued a press release clarifying that the order did not grant powers to the agencies to take suo motu action and that directions need to be issued by the Union Home Secretary. The order said:
· The Statutory order (S.O.) dated 20.12.2018 has been issued in accordance with
rules framed in year 2009 and in vogue since then.
· No new powers have been conferred to any of the security or law enforcement
agencies by the S.O. dated 20.12.2018.
It also said, “Each case of interception, monitoring, decryption is to be approved by the
competent authority i.e. Union Home secretary. These powers are also available to the
competent authority in the State governments as per IT (Procedure and Safeguards for
Interception, Monitoring and Decryption of Information) Rules 2009.”
The entire Press Release issued on December 21, 2018 may be read here.
Implications of the Order
The Information Technology Act was passed in the year 2000 and amended in 2008. The complete act with amendments may be read here.
According to this Act, “Computer” means
any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.
The December 20, 2018 order therefore gives the government wide powers to monitor any device that falls within this very exhaustive definition and monitor private online communication of citizens under the guise of maintaining national security. Needless to say this has deeply disturbing implications, especially in an election year.
The 10 authorised agencies now have virtually unrestricted right to access the private digital communication of any citizen and the biggest fear is that the surveillance will be to keep tabs on communication by and between known dissenters and critics of the current regime. This will allow the agencies to flag these dissenting voices as enemies of the state and lead to curbs on their freedoms.
As it is in 2018, first the homes of several key Dalit leaders and prominent voices of dissent against systematic oppression of Dalits and Adivasis were raided. Then, members of movements demanding several human rights activists, trade union leaders and lawyers were branded ‘urban naxal’ and accused of plotting to overthrow the government and assassinate top leaders based on evidence the authenticity of which has been widely disputed.
Additionally, the order is alleged to be in violation of the Right to Privacy.
Order Challenged in Supreme Court
However, a few people have challenged the order. Amit Sahni moved Supreme Court praying that the order be quashed to prevent any infringement of the right to privacy. Calling it a “blanket surveillance order”, Sahni argued that it had wider “corollaries, ramifications and implications.”
By mid-January 2019, as many as five different petitions challenged the surveillance order in the Indian Supreme Court. These include the Internet Freedom Foundation and Shreya Singhal who had previously successfully challenged Section 66 of the IT Act. Grounds range from Right to Privacy, Freedom of Expression as well as absence of clarity about the circumstances under which the agencies may access the device and the data.
The Supreme Court has now issued notice to the MHA based on these PILs. The notice was passed by a bench comprising Chief Justice of India Ranjan Gogoi, and Justices Ashok Bhushan and Sanjay Kishan Kaul. The apex court has given the Centre six weeks to respond.
Recent Instances of Surveillance in India
However, this order is not the first instance of the government attempting to spy on ordinary citizens in a possible bid to scuttle dissent or monitor private communication between private individuals.
In fact, it was the UPA 2 government that posed a threat to privacy of Indian citizens. Not too long ago provisions under the draconian Section 66 (a) of the IT Act were used in a bid to monitor and control online communication. According to this section:
Any person who sends, by means of a computer resource or a communication device,-
shall be punishable with imprisonment for a term which may extend to three years and with fine.
For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
Now, while on the surface the provisions of this law appear to serve an “honourable” purpose, it drew grave criticism from privacy activists because it gave wide powers to the authorities to crush dissent by just claiming it was annoying, inconvenient, insulting or offensive! This led to a spate of cases being filed and even arrests of a wide variety of dissenting voices ranging from students, to human rights activists, to artists, comedians, journalists and commentators. The most shocking was the arrest of two young college students from Palghar near Mumbai who liked and shared a Facebook post about the alleged inconvenience to day-to-day life due to bandh called in wake of the demise of Shiv Sena supremo Bal Thackeray.
In fact, this section was violative of Article 19 (1) (a) of the Constitution of India that says that all citizens of India have the right to Freedom of Speech and Expression. In fact, the Indian Supreme Court said as much while striking it down in the Shreya Singhal vs Union of India case, leading to a watershed moment for free speech online. Justice Chelamsewar and Justice Nariman passed the landmark judgment and held that section 66 a was “open ended, undefined and vague” with every expression used in it “nebulous in meaning”. The court said,
Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.”
The court also said,
It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”
The entire Shreya Singhal vs Union of India judgment may be read here:
But it appears that despite being scrapped the section was still being used by the police to harass and bully people, particularly those known as strong dissenting voices. On January 7, 2019, the Supreme Court issued notice in an application filed by People’s Union for Civil Liberties (PUCL), on the continued use of Section 66 a. In October 2018, a paper co-authored by Abhinav Sekhri and Apar Gupta, called Section 66 (a) a “legal zombie”.
We at CJP believe the only way forward is for citizens to protest peacefully and creatively; from demonstrations on the streets, to social media campaigns to seeking redressal via public interest litigations… so that the state may never take them for granted and violate their Right to Privacy.
*Feature Image Credit: g4ll4is, CC BY 2.0/Flickr