Laws dealing with Surveillance
GS III – Internal Security
- Currently, the laws authorising interception and monitoring of communications are
- Section 92 of the CrPC (for call records, etc),
- Rule 419A of the Telegraph Rules,
- the rules under Sections 69 and 69B of the IT Act.
- Indeed, it is unclear when the Telegraph Act applies and when the IT Act applies.
- A limited number of agencies are provided powers to intercept and monitor.
- In 2014, the Ministry of Home Affairs told Parliament that nine central agencies and the DGPs of all States and Delhi were empowered to conduct interception under the Indian Telegraph Act.
- In 2018, nine central agencies and one State agency were authorised to conduct intercepts under Section 69 of the IT Act.
- Yet, the Intelligence Organisations Act, which restricts the civil liberties of intelligence agency employees, only lists four agencies, while the RTI Act lists 22 agencies as “intelligence and security organisations established by the central government” that are exempt from the RTI Act.
- Thus, it is unclear which entities count as intelligence and security agencies.
- Further, a surveillance alphabet soup exists, with programmes such as CMS, TCIS, NETRA, CCTNS, and so on, none of which has been authorised by any statute, and thus fall short of the 2017 K.S. Puttaswamy judgment, which made it clear that any invasion of privacy could only be justified if it satisfied three tests: first, the restriction must be by law; second, it must be necessary (only if other means are not available) and proportionate (only as much as needed); and third, it must promote a legitimate state interest (e.g., national security).
- In 2010, then Vice-President Hamid Ansari called for a legislative basis for India’s agencies, and the creation of a standing committee of Parliament on intelligence to ensure that they remain accountable and respectful of civil liberties.
- In 2011, the Cabinet Secretary in a note on surveillance held that the Central Board of Direct Taxes having interception powers was a continuing violation of a 1975 Supreme Court judgment on the Telegraph Act.
- That same year, parliamentarian Manish Tewari introduced a private member’s Bill to bring intelligence agencies under a legislative framework. That Bill soon lapsed.
- In 2013, the Ministry of Defence-funded think-tank, the Institute for Defence and Strategic Analysis, published a report, “A Case for Intelligence Reforms in India”, a core recommendation of which was: “the intelligence agencies in India must be provided a legal framework for their existence and functioning; their functioning must be under Parliamentary oversight and scrutiny”.
- In 2018, the Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies are “potentially unconstitutional”, since they are not constituted under a statute passed by Parliament — the National Intelligence Agency being an exception.