Govt's 'snooping order' to soon face the judicial test; will it pass?

While the MHA order will no doubt aid the security agencies in their investigative capacities, what remains unclear, is how much actual security such a measure would provide

Last week, a directive from India’s ministry of home affairs (MHA) authorised ten government agencies to intercept any communication from any electronic device, including computers, and mobile phones, when investigating matters of national importance.

Opposition leaders cried foul, alleging privacy violation and the creation of a surveillance state, but the government staunchly defended the measure as vital for national security.

For any regular observer of Indian politics, the one certainty in this debate is that the directive will face a constitutional challenge before long. The question is, will it survive judicial scrutiny?

A circular by a ministry is an executive order, which satisfies the definition of ‘law’ as per Article 13 of the Constitution. This also states that any law in contravention of the fundamental rights is void and may be struck down by the High Courts and Supreme Court.

The Supreme Court in its recent judgments on the Right to Privacy and Aadhaar has established the twin tests of ‘necessity’ and ‘proportionality’ as the touchstones for judging such measures. A plain reading of the MHA circular suggests that it fails on both these counts.

Not only does it create a platform for mass surveillance by the government, but by alluding to national security, it plays up a prevailing anxiety among the public to justify this disproportionate power.

‘Big Brother is watching’

Clichéd as it may sound, this move by the MHA has the flavor of an Orwellian dystopia.  The over-broad language of the circular presents a possibility for collecting and utilizing sensitive personal information on an unprecedented scale. The circular refers to ‘information generated, transmitted, received or stored in any computer’. Without any qualifiers attached, this enables the agencies to access the contents of every computer, phone or like device that is being operated in the country.

The circular states ‘interception, monitoring and decryption’ as its purpose. This implies that intelligence gathered by these agencies may be used for any purpose whatsoever; so long it fits into the broad understanding of ‘monitoring’. 

This may be the most worrisome aspect of the circular, especially due to the absence of a Data Protection Act. The ideas of collection limitation and use specification do not flow naturally from existing laws. Collecting data beyond the requisite amount or purpose specified, and profiling individuals or groups based on such interception, are certainly not beyond the realm of possibility.

The national security justification

The justification of national security has been the favored arrow in the quiver of the investigative agencies in surveillance cases across the world. Courts have traditionally deferred to the executive’s prerogative whenever the National Security argument is introduced. The Court’s reluctance in striking down national security laws in the backdrop of rising terrorism is perhaps understandable, since it may feel that denuding the security agencies of their powers makes the Court indirectly responsible for acts of extremism to follow.

While the MHA order will no doubt aid the security agencies in their investigative capacities, what remains unclear, even apart from fears of misuse, is how much actual security such a measure would provide? Noted scholars such as Jennifer Chandler argue that heightened surveillance often leads to less rather than more security, since these measures have been known to disproportionately affect racial and religious minorities, based on profiling along those lines. These measures that seem to increase a feeling of security but don’t translate to an actual increase in physical safety create a condition described as a ‘security theatre’, where the mental aspect of ‘feeling secure’ is given greater importance than physical safety.

More than what meets the eye?

Curiously, while the rhetoric from the government harps on national security, Section 69 of the Information Technology Act has a far wider import. A direction issued under the section includes interception for the purposes of investigation of offences and preventing incitement to offences.

The current directive enlists agencies such as the Narcotics Control Bureau and Central Board of Direct Taxes, which seems to suggest that these powers may be utilized for the detection of financial and narcotics related offences as well. This  contradicts the government claim that these powers are reserved for exceptional cases, especially those relating to national security.

Existing safeguards provide little consolation. The government claims that due process will be observed, since the agencies may only intercept data after approval from the home secretary. But without judicial oversight or need for warrants, the government will be the judge in its own cause; the executive and its officials will be in charge of the entire operation, including deciding its necessity and scope.

If data is the new oil, the central government is certainly its new baron. The MHA directive is part of the government’s continuous and concerted efforts to obtain greater volumes of citizen’s data. In the case of Aadhaar, data was collected under the pretext of greater transparency for welfare schemes; in this case, the pretext is national security.

The overbroad language, the excessive delegation of powers and the lack of meaningful accountability in the circular could be a potent weapon in the hands of the data handlers. Only the naïve would dismiss the possibility of misuse.

In the era of targeting dissident voices by branding them ‘Urban Naxals’, based on unclear evidence purportedly obtained from personal computers, this decision could be ominous.

Agnidipto Tarafder is an Assistant Professor of Law at the West Bengal National University of Juridical Sciences, Kolkata. He teaches a course in the law of privacy.

In an arrangement with The Wire