The government defended the need for the CMS, NETRA and NATGRID surveillance systems saying that « grave threats to the country from terrorism, radicalisation, cybercrime, drug cartels, etc, cannot be understated or ignored » and it was imperative, therefore, to have a robust mechanism « for speedy collection of actionable intelligence ».
The submission was made by the Ministry of Home Affairs (MHA) in an affidavit filed before a bench of Chief Justice D N Patel and Justice Jyoti Singh in response to a PIL which has claimed that citizens’ right to privacy was being « endangered » by these surveillance programmes.
Additional Solicitor General (ASG) Chetan Sharma, appearing for the MHA, told the court that law enforcement agencies need prior permission of the competent authority — Union Home Secretary — before carrying out any lawful interception or monitoring or decryption of any message or class of messages or any information stored in any computer resources.
« The lawful interception or monitoring or decryption of any message or class of messages or any information stored in any computer resources, is done by authorised law enforcement agencies having legal and statutory powers and after due approval of each case by the competent authority as per the provisions of the Indian Telegraph Act and the Information Technology Act, » the affidavit, filed through central government standing counsel Ajay Digpaul, said.
The ASG said no specific instances of violations of privacy have been mentioned in the joint plea by NGOs Centre for Public Interest Litigation (CPIL) and Software Freedom Law Centre (SFLC) and it also does not refer to the class of persons aggrieved by these systems.
He told the court the right to privacy of citizens is « balanced out » under these surveillance systems.
Advocate Prashant Bhushan, appearing for the NGOs, told the court that the affidavit does not state what specific steps have been taken by the government and added that since all kind of personal information, like travel itinerary, purchases, bank transactions, etc, was being intercepted and not just phone calls, therefore, there was a need for a completely new set of regulations for controlling such surveillance.
He claimed that permissions for surveillance was being granted routinely without any application of mind and sought time to file a response to the affidavit filed by the government. The bench gave the NGOs time till March 19, the next date of hearing, to file its rejoinder.
The government, in its affidavit, said « There is no blanket permission to any agency for interception or monitoring or decryption as the authorised agencies require permission of the competent authority — Union Home Secretary — in each case as per due process of law and justification for interception or monitoring or decryption. »
The ASG told the court that the permissions are only given in cases which affect « the sovereignty and integrity of India, defense of the country, security of the State, friendly relations with foreign States, public order, etc ».
The affidavit further states that the standard operating procedure (SOP) for carrying out surveillance mandates that permission for the same shall be sought only if information required cannot be acquired by any other reasonable means.
The government denied the NGOs’ allegation that permissions are granted mechanically and claimed that each proposal is scrutinised by a dedicated unit of the MHA « with strict security and confidentiality » before it is considered by the Home Secretary for approval.
It contended there is sufficient mechanism of oversight in place in the form of a Review Committee, headed by the Cabinet Secretary at the centre and chief secretary at the state level, which examines if the approval has been given in accordance with the law.
« When the Review Committee is of the opinion that the directions are not in accordance with the provisions, it may set aside the directions and order for destruction of the copies of the intercepted, message or class of messages, » the government has said in its affidavit.
The NGOs have claimed that these surveillance systems allow central and state law enforcement agencies to intercept and monitor all telecommunications in bulk which is an infringement of the fundamental right to privacy of individuals.
They contended that under the existing legal framework there is an « insufficient oversight mechanism » to authorise and review the interception and monitoring orders issued by the state agencies.
The NGOs have sought directions to the Centre to « permanently stop the execution and the operation of the surveillance projects, CMS, NETRA and NATGRID, which allows for bulk collection and analysis of personal data.