The Pegasus spyware scandal has opened up some deep wounds in Indian body politic. It's time for serious reform.
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Surveillance and spying In India - Full analysis
- The story: In America, in the aftermath of the Watergate scandal in 1970s, a lawmaker had said that if a dictator ever took charge of the US government, the kind of technology that intelligence community has, can give such power to that one man that he could easily become a total tyrant (no resistance). India's own surveillance scandal was out in the open, in July 2021, but the government is not telling who surveilled whom; and the international regulation of shadowy companies like NSO too is not tight enough either.
- The law enabling it: It's time for surveillance in India to be made fully accountable now. It is true that national security needs some amount of surveillance of the terrorists and insurgents, but if in the name of national security, all fundamental rights of innocent citizens (that the regime dislikes) are taken away, it's of no use.
- Unaccountable surveillance has many negatives - (i) puts privacy at risk, (ii) chills the freedom of speech and thought (out of fear), (iii) destroys the 'rule of law' that is the foundation of a constitutional liberal democracy
- Govt's claims are that all surveillance is authorised (hence justified), so the natural question is - how many convictions did it secure in courts against terror and organised crime, and spying? Which authority is ensuring the surveillance is proportionate and necessary?
- History and some incidents:
- 2012 - Himachal Pradesh snooping scandal - the new govt. uncovered massive phone tapping of all important people (including the DGP)
- 2013 - Present Indian home minister used a terrorism unit to snoop on a young female architect and her family with no legal basis; Gujarat govt. accepted the surveillance and said that the girl's father asked for it!; no official order signed by State's home secretary was ever produced (What HC did? It shut down the enquiry into it on father's request as there wasn't any public interest!)
- 2009 - UPA told Supreme Court that the powerful Niira Radia (PR professional) was snooped upon by CBDT as she was suspected to be a foreign spy (no final prosecution even after 300 days of surveillance)
- KK Paul (Meghalaya Governor) informed way back that telecom firms had complained of private people using police contacts to do illegal surveillance (e.g. Essar group) of competition and even estranged spouses!
- All this is unlawful, has nothing to do with national security, or organised crime. No one ever is held accountable!
- Present laws: Today we have laws authorising interception and monitoring of communications - S.92 of CrPC (call records), Rule 419A of Telegraph Rules, S.69 and 69B of the IT Act; Some agencies are given the powers to intercept and monitor.
- 2014 - Home Ministry informed Parliament that all state DGPs and 9 central agencies were empowered to do all this
- 2018 - It was informed that 9 central agencies and one State agency was authorised; but te Intelligence Organisation Act listed only 4 agencies (and RTI act exempts 22 agencies from any enquiry); so there's no clarity on which entites are intelligence and security agencies
- Right to privacy judgment: The Right to Privacy judgement 2017 (KS Puttaswamy vs State of India) had clarified that any invasion of privacy must fulfil three conditions - (i) the restriction must be by law, (ii) no other means are available and hence it was necessary, and must be proportionate (iii) it must promote a legitimate state interest (e.g. national security). Now, there are many surveillance programmes - CMS, TCIS, NETRA, CCTNS - none authorised by law!
- 2010 - Demand that parliament must have an 'Standing Committee on Intelligence' to legislatively supervise all surveillance
- 2011 - It was held that CBDT's surveillance was a violation of a 1975 SC judgement
- Repeatedly, it was reminded in Parliament that intelligence agencies be brought under a legal framework and a Parliamentary oversight be created
- 2018 - The Srikrishna Committee on data protection clarified that after the 2017 privacy judgment, most of India's intelligence agencies are 'potentially unconstitutional' (not formed by any law) except the NIA
- 2019 - The INC election manifesto called for parliamentary oversight of intelligence agencies (first time in India)
- Summary: When in 2013, Edward Snowden blew the lid on Obama govt's snooping, it was found that no opposition leader, judges, journalists or human rights defenders were being targeted at all; What was shocking was the vast reach of NSA's surveillance, a lot of which was then reformed. India now needs reforms in intelligence gathering, and parliamentary oversight for intelligence agencies. Civil liberties must be protected at all costs; India' Watergate Moment must not be wasted.
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