Allow spying without nod, says Kerala Bill

Context:

The police can listen in on any communication, without waiting for official approval, to curb organised crimes, a draft of the Kerala Control of Organised Crimes Bill has proposed.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Fundamental Rights, Important Judgements)

Dimensions of the Article:

1. Legislations on Surveillance
2. Who can conduct Surveillance?
3. K.S. Puttaswamy judgment, 2017 regarding Surveillance
4. Various recommendations in the past regarding Surveillance
5. Issues in the past regarding Government’s surveillance

Legislations on Surveillance

• The laws authorising interception and monitoring of communications are:
  1. Section 92 of the Criminal Procedure Code (CrPC)
  2. Rule 419A of the Telegraph Rules, and
  3. The rules under Sections 69 and 69B of the IT Act

Who can conduct Surveillance?

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.
• 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.

K.S. Puttaswamy judgment, 2017 regarding Surveillance

• The K.S. Puttaswamy judgment, 2017, made it clear that any invasion of privacy could only be justified if it satisfied three tests:
  1. The restriction must be by law;
  2. It must be necessary (only if other means are not available) and proportionate (only as much as needed);
  3. It must promote a legitimate state interest (e.g., national security).
• It was held that privacy concerns in this day and age of technology can arise from both the state as well as non-state entities and as such, a claim of violation of privacy lies against both of them.
• The Court also held that informational privacy in the age of the internet is not an absolute right and when an individual exercises his right to control over his data, it may lead to the violation of his privacy to a considerable extent.
• It was also laid down that the ambit of Article 21 is ever-expanding due to the agreement over the years among the Supreme Court judges as a result of which a plethora of rights has been included within Article 21.
• The court stated that Right to Privacy is an inherent and integral part of Part III of the Constitution that guarantees fundamental rights. The conflict in this area mainly arises between an individual’s right to privacy and the legitimate aim of the government to implement its policies and a balance needs to be maintained while doing the same.

Various recommendations in the past regarding Surveillance

• In 2010, then Vice-President alled 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.
• In 2013, the Ministry of Defence-funded think-tank published a report which recommended that 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 Investigation Agency being an exception.

Issues in the past regarding Government’s surveillance

• In 2012 in Himachal Pradesh, the new government raided police agencies and recovered over a lakh phone conversations of over a thousand people, mainly 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.
• In 2013, India’s current Home Minister Amit Shah was embroiled in a controversy dubbed “Snoopgate”, with phone recordings alleged to be of him speaking to the head of an anti-terrorism unit to conduct covert surveillance without any legal basis (as there was no order signed by the State’s Home Secretary which is a legal necessity for a phone tap).
• The UPA government in 2009 said that the CBDT had placed a PR professional, under surveillance due to fears of her being a foreign spy. Later on, the CBDT did not prosecute the person.

Such examples of unlawful surveillance which seem to be for political and personal gain are antithetical to the basic creed of democracy. Consequently, they also bring up the need for ensuring that the surveillance is necessary and proportionate.

-Source: The Hindu