Model Question and Answers for APSC | We need reforms in India, which are aimed at professionalising intelligence gathering, bringing intelligence agencies under parliamentary oversight, making them non-partisan, and ensuring that civil liberties and rule of law are protected. Critically discuss.
We need reforms in India, which are aimed at professionalising intelligence gathering, bringing intelligence agencies under parliamentary oversight, making them non-partisan, and ensuring that civil liberties and rule of law are protected. Critically discuss.
- One security expert likens surveillance to salt. A small amount of surveillance is necessary for the health of the body politic, just as salt is for the body; in excess, both are dangerous.
- While one cannot enjoy the liberties provided under the Constitution without national security, we must equally remember that national security is not meaningful if it comes at the cost of the very liberties such security is supposed to allow us to enjoy.
- Excessive and unaccountable surveillance imperils privacy, freedom of thought, of speech, and has a chilling effect on people’s behaviour, while shattering the bedrock of the rule of law upon which a constitutional liberal democracy is built.
- Indeed there are numerous examples of surveillance powers being misused for personal and political gain, and to harass opponents.
- In 2012 in Himachal Pradesh, the new government raided police agencies and recovered over 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 2009, the United Progressive Alliance government swore in an affidavit in the Supreme Court that the CBDT had placed Niira Radia, a well-connected PR professional, under surveillance due to fears of her being a foreign spy. Yet, while they kept her under surveillance for 300 days, they did not prosecute her for espionage.
- There are dozens of such examples of unlawful surveillance which seem to be for political and personal gain and have nothing to do with national security or organised crime. Yet, there are few examples of people being held legally accountable for unlawful surveillance.
The legal confusion:
- 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, and 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 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 2014, the Ministry of Home Affairs told Parliament that nine central agencies and the DGPs of all States and Delhi were empowered to conduct an 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).
Steps to be taken:
- 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.
- 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 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.