Centre’s surveillance order challenges Supreme Court verdict on privacy: experts

In its 2017 judgment, the apex court had asked the government to always carefully and sensitively balance individual privacy and the legitimate concerns of the state.

The December 20 order allowing 10 different Central agencies to snoop on people is seen as a challenge to the nine-judge Constitution Bench judgment of the Supreme Court, which directed the government to protect informational privacy of every individual.

In its 2017 judgment , the apex court had asked the government to always carefully and sensitively balance individual privacy and the legitimate concerns of the state, even if national security was at stake.

The December 20 order allows central agencies — from the Intelligence Bureau to the Central Board of Direct Taxes to the Cabinet Secretariat (RAW) to the Commissioner of Delhi Police — to intercept, monitor and de-crypt “any information” generated, transmitted, received or stored in “any computer resource”.

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The government order is based on Section 69 (1) of the Information Technology Act, 2000, and Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

‘Blanket powers’

“I would say the balance tilts heavily in favour of the government. A wide range of government bodies have been given blanket powers. There is no common thread among these agencies. For example, why should the Central Board of Direct Taxes get access to your encrypted material?” senior advocate Sajan Poovayya, who was one of the leading counsel in the privacy case before the apex court, said.

Mr. Poovayya pointed out that the order does not provide the procedure or the object for such an exercise or the quantum of period for which a person’s private data could be intercepted. “A subsequent government press release explaining that prior approval of the Union Home Secretary would be taken before snooping has no legal value… It is only meant for the consumption of the Press. The point is the notification is silent about due procedure,” he said.

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“This order cannot be a basis for interception. It can only be understood as nominating the agencies, who on a case-to-case basis and subject to oversight, will obtain orders from designated judicial authorities to intercept… Any other interpretation will result in a serious invasion of individual privacy recognised in the K.S. Puttuswamy (privacy) judgment,” senior advocate K.V. Vishwanathan reacted.

Experts say the December 20 order may be challenged in the apex court. The privacy judgment has already asked the government “to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world”.