Intelligence
Agencies play an important role in protecting National Security of a
country. They help in maintaining Internal and External Security of a
Nation. The very nature of their functioning and work requires some
degree of Anonymity, Secrecy and Confidentiality. However, this must
not be confused with “Non Accountability” and “Lack of
Transparency”. Unfortunately, Indian Intelligence Agencies have
become synonymous to Non Accountability and Lack of Transparency.
World over it has been accepted that there must be a
balance between National Security and Civil Liberties Protection. The
United Nations (UN) Third Committee has also approved a text titled
Right to
Privacy in the Digital Age. This is in recognition of the Privacy
Right in the Information Era that has gained prominence off late.
It also means that the Big Brother must not “Exceed
its Limits” as prescribed by the Human Rights and Civil
Liberties Protection in Cyberspace.
India is clearly inclined to become an “Endemic
E-Surveillance State” with no respect for Constitutional Rights
and Civil Liberties. The journey of India “From
Welfare State to E-Police State” began in 2009 with the
notification of Information Technology Amendment Act, 2008 and it
became complete in the year 2014 with the introduction of
E-Surveillance Projects like Central
Monitoring System (CMS) and Internet
Spy System Network And Traffic Analysis System (NETRA) of India.
I even suggested in May 2013 that Indian CMS must be subject to Prime
Minister Office (PMO) “Scrutiny
and Intervention”.
Nevertheless, the Big Brother Initiatives in India
remained
unaffected. In fact, the Congress Government made it “Absolutely
Sure” that various E-Surveillance Projects are not only “Kept
Alive” but they should also be “Made Immune from Judicial
Scrutiny”. Our Constitutional Courts also did not consider it
necessary to interfere and take appropriate actions.
To make the matter worst, we have no E-Surveillance
Policy of India. It is now well known that Indian Government
forced Telecom Companies like Vodafone to install “Secret
Wires” to indulge in Unconstitutional E-Surveillance and Phone
Tapping. Similarly, Indian Telecom Infrastructures have been
constantly used for indulging in Unconstitutional E-Surveillance
Practices as we have no implementable Telecom
Security Policy in India.
In other jurisdictions, new methods of
E-Surveillance are devised on regular basis. For instance, use of
Radio Waves and
Malware United State’s NSA for World Wide E-Surveillance is
well known. The Department of Justice (DOJ) has recently
announced a New Reporting Methods for National Security Orders.
India on the other hand, is not at all interested in making its
Intelligence Agencies and E-Surveillance Projects “Accountable to
the Parliament”. This is a situation that needs to be urgently
changed as it “Undermining the Constitution” and “Rule of Law”
has no meaning and significance in these circumstances.
Indian Government does not understand and accept
that Law Enforcement and Intelligence Work is “Not
an Excuse for Non Accountability”. For some strange reasons
Intelligence Infrastructure of India has become synonymous to
Unaccountability
and Mess.
There is neither any Parliamentary Oversight nor and Transparency
and Accountability of the working of Intelligence Agencies of
India.
Perry4Law
has already provided
a “10
Point Legal Framework for Law Enforcement and Intelligence Agencies
in India” (PDF) to the Government of India in September 2009.
However, the Indian Government failed to act upon the same and to
formulate a Techno Legal Framework accordingly.
In a Recent
Landmark Judgment (PDF), the constitution
of CBI was held Unconstitutional by Gauhati High Court. In my
personal opinion, the decision of Gauhati High Court declaring CBI
unconstitutional is “Legally
Sustainable”. Although almost all have criticised this decision
of Gauhati High Court yet it is “Neither Absurd nor an Uncalled
One”. Parliamentary Oversight of any Law Enforcement Agency is the
“Core Requirement” under Indian Constitution. However, our
Intelligence Agencies and many Law Enforcement Agencies, including
CBI, are not governed by any sort of Parliamentary
Oversight.
Unfortunately, the Supreme Court of India stayed
this decision. This may be for a good cause if the Modi Government
utilises this opportunity to formulate suitable Law for CBI and other
Intelligence Agencies of India. However, this exercise of Supreme
Court would be the “Most Unfortunate One” if there is no action
in this regard by the Modi Government. So what should be the Modi
Government’s next step?
Firstly, there is an urgent need to repeal draconian
laws like Telegraph
Law and Indian
Cyber Law. Secondly, there is a dire need to formulate dedicated
Telephone
Tapping Law of India as soon as possible. Thirdly, India “Must
Reconcile” the Civil Liberties and National Security
Requirements but the same is presently missing. Indian Government is
also “Not
Serious” about formulating a dedicated Privacy Law for India.
Data Protection
and Privacy Rights in India are in real bad shape.
Fourthly, India’s own Projects like Aadhar,
National
Intelligence Grid (NATGRID), Crime
and Criminal Tracking Network and Systems (CCTNS), National
Counter Terrorism Centre (NCTC), Central
Monitoring System (CMS), Centre
for Communication Security Research and Monitoring (CCSRM),
NETRA, etc are violative of Civil
Liberties Protection in Cyberspace. None of them are governed by
any Legal Framework and none of them are under Parliamentary
Scrutiny. In short, Intelligence Infrastructure of India needs
Transparency
and Strengthening to make it “Effective and Accountable”.
With the new Government some action in this regard
is expected but only time would tell whether Modi Government would
“simply step into the shoes of Congress” or actually protect the
Constitutional Rights of Indian Citizens.