The Centre recently notified a list of 10 agencies authorised to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer. This notification has been issued in exercise of the powers conferred by sub-section (1) of section 69 of the Information Technology Act, 2000 read with rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009. Not surprisingly, political circles have been quite critical of it. It has been described as unconstitutional, undemocratic and an assault on the fundamental rights.
Critics point out that such powers are liable for misuse, especially to settle scores with political rivals. According to some, the new law is draconian interfering with the right to privacy of citizens which has been recognised as a fundamental right by the Supreme Court. In the charged atmosphere of current politics, this has been interpreted as an attempt by the government to play the Orwellian Big Brother snooping on its adversaries. A closer examination shows that the government has done only what is logically necessary under the IT Act and the rules framed thereunder by its predecessor in 2009. Under rule 4, the competent authority may authorise an agency of the government to carry out monitoring, interception and decrypting of information generated, transmitted, received or stored by computers. It is strange that despite notifying the rules in 2009, the above notification authorising the Central agencies was not issued soon thereafter. It is now only that clarity has emerged as to the agencies which a
re authorised to exercise this power. The rules also lay down that the interception etc. cannot be carried out except under orders from the competent authority, namely the Union Home Secretary. It is also relevant to mention here that a similar provision exists in the Indian Telegraph Act.
In the context of the current security scenario characterised by cross-border terrorism, militancy in Jammu and Kashmir and the North- East, Left extremism, functioning of surreptitious terrorists cells based within the country and the increasing frequency of economic crimes, the country’s premier intelligence and investigating agencies cannot afford to be handicapped by the lack of legal authorisation for deep surveillance. Mobile conversations are amenable to easy interception and increasingly planning and execution of anti-national activities are spanning out to cyber space. Considerable planning and execution work is done through emails and social media networks.
One of the major challenges in countering militancy in Jammu and Kashmir is the recruitment of local youth into terrorist networks. This calls for intensive surveillance, including interception of messages.
In the ‘urban Naxalites’ case investigated by the Maharashtra police, they had to rely on the large volumes of emails by the accused. In the past accessing computer information was instrumental in the successful investigation of terrorist cases.
The recent case of busting of a major terrorist conspiracy by the NIA brings into sharp focus the success of preventive work. However, preventive work seldom comes to public gaze and there is insufficient appreciation of the good work done. On the other hand, an actual terrorist incident invites a torrent of criticism. Terrorism has been in check in the recent years only because of the efficient surveillance of the intelligence agencies and the work of the investigating agencies in unearthing dangerous networks of anti-nationals and white collar criminals.
Therefore, the new notification is a logical step towards strengthening surveillance and investigation and thereby national security. Such powers no doubt have the potential to be misused and there could be additional safeguards should the future situation so warrants. At any rate, making a political controversy over national security issues will not do the country any good. India may be a liberal democracy but the freedoms our Constitution guarantees are always subject to reasonable restrictions. In a democracy, there are checks and balances which can counter the misuse of powers by an agency of the Executive. Those who are squeamish about exercise of surveillance powers by national agencies may do well to remember that companies like Alphabet, Amazon and Facebook have access to immense personal data and the emerging power of this data and its impact on individual freedom and privacy are more likely to lead to an Orwellian syndrome than legitimate efforts by the government to plug security loopholes.
(The author is a former defence secretary)
