[dropcap]T[/dropcap]HE Central Government has filed an affidavit in the Supreme Court, defending a notification date December 20, 2018, issued by it, authorising ten central agencies to intercept, monitor and decrypt “any information” generated, transmitted, received or stored in “any computer”.
Existing SOP not clear
In the affidavit, the Centre has said that prior to the said notification, the exercise of powers under section 69 of the Information Technology Act, 2000 Act was being regulated by the Rules and Standard Operating Procedure (SOP) made by the Government of India on May 19, 2011. Though the SOP continues to be in force, it did not provide with exactitude, the agencies which would have jurisdiction and competence to invoke the provisions of Section 69 of the IT Act, the Centre submitted.
According to the affidavit, the purposes of issuing the notification were as follows:
To ensure that any interception, monitoring or decryption of any information through computer resource is done only as per due process of law.
To ensure that any interception or monitoring or decryption of computer resource is done only by the authorised agencies for purposes specified in Section 69 of the IT Act, as per due process of law, and with the approval of the competent authority.
To prevent unauthorised use of these powers by any agency, individual or intermediary.
To ensure that right to privacy of law abiding citizens is not violated by any agency, intermediary or person.
Further, the Centre has submitted that all the ten agencies will have to mandatorily obtain prior approval from the Union Home Secretary, and such cases will be restricted strictly to the purposes mentioned in Section 69(1) of IT Act, viz, in the interest of sovereignty, integrity of India, defence of India, security of the state, friendly relations with foreign states or public order, or for preventing incitement to commission of any cognizable offence.
Though the existing SOP continues to be in force, it does not provide with exactitude, the agencies with jurisdiction and competence to invoke the provisions of Section 69 of the IT Act, the Centre has submitted.
It has clarified in the affidavit that there is no blanket permission to the ten central agencies to carry out interception.
Records pertaining to such direction for interception and of intercepted messages shall be destroyed by the relevant authority within six months unless these are, or likely to be, required for functional requirement, the Centre has said in its affidavit.
Right to privacy important but not absolute
In so far as the validity of Section 69 of the IT Act, 2000 is concerned, the Centre has submitted that though the right to privacy is a very important right, the section was justified on the basis of a law which stipulates a procedure which is fair, just and reasonable and that any invasion of any right is met by the three-fold requirements of (i) legality, (ii) need; and (iii) proportionality.
The right to privacy is a very important right, but the section was justified on the basis of a law which stipulates a procedure which is fair, just and reasonable and that any invasion of any right is met by the three-fold requirements of legality, need and proportionality.
Furthermore, Centre has, in order to defend the said notification and provision, referred to grave threats to the country from terrorism, radicalisation, cross border terrorism, cybercrime, organised crime and drug cartels. These threats, the Centre has said, cannot be understated or ignored and a strong and robust mechanism for timely and speedy collection of actionable intelligence, including signal intelligence, was imperative to counter them for national security. This is undeniably a legitimate state interest, the Centre has claimed. The Centre goes on to say that though it respects the right to privacy of citizens, the veil of privacy can be lifted for legitimate state interests, namely in the interest of sovereignty, integrity of India, defence of India, security of the state, friendly relations with foreign states or public order, or for preventing incitement to commission of any cognizable offence.
The Centre has also provided the court with an illustrative list of major cases in recent month that prevented terrorism and drug trafficking.
Background of the Case
A three-judge bench of the Supreme Court comprising Chief Justice of India (CJI) Ranjan Gogoi, Justices Ashok Bhushan and Sanjay Kishan Kaul had issued notice to the Central Government on a batch of Public Interest Litigation (PILs) seeking to quash a Ministry of Home Affairs (MHA) notification dated December 20, 2018 authorising ten central agencies to “intercept, monitor, and decrypt (collectively described as “Electronic Surveillance”) any information generated, transmitted, received, or stored in any computer resource.”
The veil of privacy can be lifted for legitimate state interests, according to the Central Government.
The Court had asked the Central Government to file its reply within six weeks. The PILs have been filed by Manohar Lal Sharma, Amit Sahni, Mahua Moitra, Shreya Singhal and Internet Freedom Foundation.
The PIL jointly filed by Internet Freedom Foundation and Raman Jit Singh Chima, in addition to challenging MHA notification, had also challenged Section 69 of the Information Technology Act, 2000 (IT Act) and The Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (2009 IT Rules) enacted pursuant to Section 69(2) read with Section 87(2)(y) of the IT Act.