Thursday , 17 October 2019
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Wide Scope For Misuse Of NDA’s Surveillance Order

The central government has authorised ten central agencies to “intercept, monitor and decrypt” data contained in “any” computer, mobile or electronic gadget. Though the government says the agencies — the Intelligence Bureau, the Narcotics Control Bureau, the Enforcement Directorate, the Central Board of Direct Taxes, the Department of Revenue Intelligence, the Research and Analysis Wing, the National Intelligence Agency, the Directorate of Signal Intelligence and the Delhi Police Commissioner — would not be allowed to make “any unauthorised use” of the powers, the assurance does not sound convincing. The fear of the average citizen cannot be allayed with the assurance that each case would have to be approved by the Union home secretary. There are examples of governments all over the world using intelligence agencies to track what the organisations, groups and individuals opposed to them are doing. During the Emergency imposed by Indira Gandhi, intelligence agencies were used to snoop on the opponents. Sometimes the officers of the agencies go beyond their briefs to get information that they think would please their masters. Sometimes the political masters ask them to get information without putting down their instructions on paper. The Modi government has defended its action saying a similar order was issued in 2009 by the UPA government. Normally the Modi government blames the UPA for doing wrong things. For once, in imposing surveillance, the Modi government kind of praises the UPA for doing a right thing, something every government must follow!

The Modi government went on further in the praise of the UPA order. It said the UPA order laid down standard operating procedures — Procedure and Safeguards for Interception, Monitoring and Decryption of Information Rules — which it was going to follow. The Modi government, which has undone most of the policies and practices implemented by the UPA government, has chosen to use the rules framed by it in complete reversal of its policies, which has earned the BJP-led government a new pseudonym of “stalker” government. The Modi government claims to be doing it for the sake of national security, but India does not at this moment face any war or serious threat to national security. So there cannot be any justification for establishing a surveillance state, as it is bound to raise fears among citizens of agencies snooping into their computers, laptops and mobiles under the guise of monitoring threats to national security by “prevention of unauthorized use of electronic gadgets.” They quite justifiably see the order as an assault on their fundamental rights including right to privacy. The order is in direct conflict with the Supreme Court judgment that right to privacy is a fundamental right.

According to the government order, the grounds on which surveillance could be carried out are: (i) interest of sovereignty of the country, (ii) defence of India, (iii) security of the state, (iv) friendly relations with foreign states and (v) public order or for preventing incitement to commission of any cognizable offence. Where do agencies like the Narcotics Control Bureau, the Enforcement Department, the Central Board of Direct Taxes and the Department of Revenue Intelligence fit into these contexts? True, the UPA government order of 2009 directed any agency (state or central) to access information on a computer on the grounds of defence and security, provided permission was given by the Union home secretary. If the Modi government cared for the protection of fundamental rights of citizens, it should have made the grounds much more specific and the requirement for inputs from the agency wanting to target someone highly detailed. Usually when a government imposes surveillance, it manufactures grounds for snooping on its opponents and critics. There are no safeguards about elimination of such fabrication. Moreover, though an agency needs to obtain clearance from the Union home secretary, it can act on its own in an “emergency situation” and take approval after three days. There is every possibility of the provisions being misused. Will the government punish officers who are found to have carried out illegitimate snooping or manufacturing inputs on certain person?

Public suspicions have also been aroused owing to the timing of the Modi government order, which has come a few months before elections to the Lok Sabha, which are looking like going to be a close fight. There are valid grounds to suspect that the agencies like the Enforcement Directorate, the Central Board of Direct Taxes and Department of Revenue Intelligence are going to keep a track on the funds of opposition parties and the businesses that give them money. Surveillance for checking threats to national security and anti-national activities must continue. It should not be used as an instrument to victimize organisations and individuals that might not be on the side of the government.

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