Proverbial storm in teacup

Interception of information, has always been an effective tool of governance. Sovereign governments have traditionally resorted to interception to be forewarned. 

In India, interception law received a new fillip when the Information Technology Act, 2000, came into effect. 

Section 69 of the Information Technology Act, deals with the power of the government to issue directions for interception, monitoring or decryption of any information through a computer resource. 

Under powers given to the Central government as per Section 87 of the Information Technology Act, the procedures and safeguards were duly notified in 2009.

The constitutional validity of Section 69 of the relevant rules was upheld by the Supreme Court in the case of Shreya Singhal vs. Union of India in 2015. So the ground rules regarding what is legal and what is not are clearly laid down. 

In the third week of December, 2018, the government notified ten agencies, authorising them to intercept, monitor or decrypt any information in electronic form, under the tickling Section 69 of the Information Technology Act, 2000. To be effective, it has to be read along with Rule 4 of Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. 

It simply provides that where the Central or a state government is satisfied that it is  necessary or expedient to do so in the interest of the sovereignty or integrity of India, it is free to intercept, monitor or decrypt any information of any computer it deems fit.

Of course, the reasons have to be recorded in writing, as can be expected in any democratic society. 

The notification, issued by the Ministry of Home Affairs, has led to a uproar as critics are convinced that it would potentially violate people’s fundamental right to privacy, as guaranteed under the Constitution of India. 

The notification was unprecedented, mainly because for the first time, as many as 10 agencies were identified for the purposes of interception and monitoring.

It is pertinent to note that while the notification of agencies has been done, the pre-requisite step of the Central government coming to a conclusion that there were good reasons to intercept, monitor or decrypt electronic information, have not been complied with. 

Further, the ground realities have dramatically changed now. In 2017, in a landmark judgment, Justice K S Puttaswamy (retd) vs Union Of India and Others, the Supreme Court had declared the right to privacy as a fundamental right and part of the fundamental right to life. 

Given the changed law of the land, by virtue of this judgment, the time is ripe for the government to relook as to how power under the fractious Section 69 of the Information Technology Act, 2000, should now be so exercised. 

The Supreme Court had upheld the constitutional validity of Section 69 in 2015, when the privacy judgment had not yet come in.

But, now with the unanimous judgment of the Supreme Court on privacy, things have changed dramatically. There is need for the government to ensure that in no action, should it be seen to be affecting prejudicially people’s fundamental rights. 

Subsequently, the Ministry of Home Affairs has clarified that the notification does not confer new powers. 

The government has sought to clarify that every case of interception, monitoring or decryption has to be approved by competent authority, that is the Union Home Secretary or its equivalent under state governments. 

There is no denying that the power of interception, monitoring and decryption needs to be an integral component of the power of any sovereign government.

However, in today’s context when Indians have a fundamental right to privacy, it is time to relook at how power under Section 69 needs to be interpreted, post the privacy judgment. 

Another practical problem is that by notifying 10 agencies for interception, monitor or decryption, the chances of the complications of overseeing exercise of powers of such agencies may become more complex. 

A couple of days later, the government of India has brought in proposed changes in the Information Technology (Intermediary Guidelines) Rules, 2011, which have been updated on the Ministry of Electronics and Information Technology (MEITY) website. 

A look at the proposed changes and given the context of Section 69 of the Act, people have a legitimate right to fear that their hard earned privacy is potentially under threat.  

The proposed changes would further consolidate power in the hands of the government. In the absence of adequate checks and balances, the proposed amendments to the Information Technology (Intermediary Guidelines) Rules, 2011, could potentially bring in far more ambiguity, grey areas and vagueness.

There is a need for far more clarity in the proposed amendments. 

The government must be seen to act in a manner, which is transparent, fair and aimed at winning the confidence of the people. At no point of time should the power of Section 69 be seen to be exercised as the power of the big brother for the purposes of surveilling upon its people. In a democratic country like India with widely plural and diverse traditions, it simply would not do and the best part is that governments know it. 

Author is an expert on cyber law and security