Highlights

• Background: In January, IFF had filed a PIL challenging the constitutional validity of the existing electronic surveillance framework in India and we filed our rejoinder in the matter yesterday.

• Need for judicial oversight: In the rejoinder, we have pointed out that the Government has failed to substantively engage with our contention that the standard for evaluating fundamental rights claims has changed after the landmark 9 judge bench decision in *KS Puttaswamy v. Union of India*. Under the newly adopted proportionality standard, electronic surveillance will pass constitutional muster only if there is judicial oversight, and the existing regime which concentrates all power in the hands of the executive requires urgent reform.

Background

Remember IFF’s petition before the Supreme Court seeking surveillance reform? Well, there have been some interesting developments in the case recently.

Yesterday, IFF filed its rejoinder in the constitutional challenge against Section 69 of the IT Act and the IT (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. At yesterday’s hearing, the Supreme Court took our rejoinder on record and directed the matter to be listed after two weeks. On 20 December 2018, the Ministry of Home Affairs had issued a notification authorizing ten law enforcement agencies to conduct electronic surveillance, and this prompted us to file a writ petition since it suggested an activation and expansion of the government’s surveillance machinery. You can read our detailed analysis of the history of surveillance in India here.

The Government’s stance

Various petitioners including IFF have questioned the constitutionality of the existing surveillance framework, and the Government filed a common counter-affidavit responding to all the petitions. As a result, the Government’s response consisted of broad assertions which failed to engage with the specific and nuanced arguments made in our petition.

First, the Government heavily relied on a never disclosed before Standard Operating Procedure to show that powers under Section 69 of the IT Act are exercised in a well regulated manner. Second, it repeatedly emphasized on the existence of a Review Committee in accordance with the guidelines laid down by the Supreme Court in 1997 in PUCL v. Union of India as a sufficient safeguard. Finally, it stated that judicial oversight in the surveillance process was undesirable because in order to effectively tackle threats like terrorism and organized crime, the executive needs speedy decision making. It also produced before the Court an illustrative list of cases cracked using electronic surveillance.

Why the Government’s defence is inadequate and misconceived

The Government’s defence is like a bucket with too many holes that doesn’t hold water. In our rejoinder, we have responded to every argument made by the Government but four important submissions from our rejoinder are worth highlighting.

(1) The Standard Operating Procedure is secret and illegal We have argued that the Standard Operating Procedure has no bearing upon the constitutionality of Section 69 of the IT Act or 2009 IT Rules. It is a form of executive action which lacks any legislative backing because it has not been issued under the IT Act or the Telegraph Act. Therefore, all electronic surveillance conducted pursuant to the Standard Operating Procedure before specific law enforcement agencies were notified on 20.12.2018 is illegal.

(2) The Review Committee lacks judicial members and it is overburdened The existence of a Review Committee is insufficient because it only consists of officials belonging to the executive branch. Since it does not have any independent judicial members, the Review Committee is unlikely to rigorously examine whether an interception order genuinely pursues a legitimate aim and whether less restrictive alternatives are available. Moreover, according to the Srikrishna Committee Report, the three member Review Committee has to evaluate 15,000-18,000 interception orders at every meeting. The sheer volume of interception orders makes it practically impossible for the Review Committee to apply its mind to each interception order or conduct any enquiry or investigation to determine if an interception order is lawful. Therefore, the Review Committee is effectively a rubber stamp for law enforcement agencies.

(3) Reliance on PUCL v. Union of India is outdated and incorrect The Review Committee is in conformity with the guidelines laid down in PUCL v. Union of India but that judgement was delivered twenty two years ago in the context of telephone tapping, and the technological landscape has undergone massive change since then. In the modern digital age, individuals share and store a large amount of sensitive personal data on their computers and smartphones. Further, law enforcement agencies are now equipped with advanced tools that have centralized and automated the surveillance process and even enabled them to track and analyse social media activity of citizens. Therefore, due to increase in both the government’s capability and the citizens’ vulnerability, the threat to privacy posed by electronic surveillance is substantially higher today than it was two decades ago. After the 9 judge bench decision of the Supreme Court in KS Puttaswamy v. Union of India recognizing a fundamental right to privacy, the judicial standard for adjudicating rights claims is the proportionality test, and in the absence of judicial oversight, surveillance cannot be considered proportionate.

(4) Lack of transparency and withholding of surveillance related data While submitting a list of illustrative cases cracked using surveillance, the Government has conveniently not revealed how many total interception orders were passed during the relevant period in spite of multiple RTI requests. Therefore, it is impossible for us to determine what proportion of electronic surveillance results in actionable intelligence and whether law enforcement agencies are casting an excessively wide net.

The tentative next date of hearing is 10 May 2019 and we will keep you posted about the progress of the case. You can also support our litigation advocacy efforts and help us fight for your fundamental rights by becoming a member today!

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