Intelligence Gathering Is Not Above Right To Privacy In India

Right to privacy in India is a constitutional right. Efforts are in the process to make it a statutory right as well. A dedicated statutory right to privacy in India is in pipeline in the form of right to privacy bill of India 2011. The proposed Bill must protect human rights in cyberspace to be valid and constitutional and it must respect the privacy rights of Indians in the information age. The proposed draft right to privacy bill 2011 of India may confer some form of privacy rights to Indians. However, its true scope is yet to be made public.

Privacy laws in India and privacy rights in India have always been ignored. We have no national privacy policy in India as well. Data protection laws in India are missing and so are data privacy laws in India. Privacy, data protection and India seems to be separable and unrelated concepts.

Indian government launched projects like Aadhar, National Intelligence Grid (Natgrid), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc. None of them are governed by any Legal Framework and none of them are under parliamentary scrutiny.

Further, there are some very crucial issues that are posing constitutional problems for the intelligence and security agencies of India. For instance, intelligence gathering in India is unconstitutional. Similarly, counter terrorism capabilities of India are not sufficient and Indian counter terrorism capabilities needs rejuvenation. Finally, parliamentary oversight and constitutional safeguards are missing in the functions of these agencies.

India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well. Further surveillance of Internet traffic in India is now openly acknowledged by Indian government.

The intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of intelligence agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations.

The draft Intelligence Services (Powers and Regulation) Bill, 2011 has failed to take the shape of a law in India and it has been announced that law on intelligence agencies would be formulated soon. Even the Draft Central Bureau of Investigation Act, 2010 has failed to become an applicable law.

E-surveillance in India, websites blocking in India, Internet censorship in India, etc are also not done a strictly constitutional manner. Till now Indian courts have not tested the acts of intelligence agencies. Recently Indian research and analysis wing (RAW) was granted e-surveillance powers without any legal framework. Now the home ministry of India is demanding that intelligence and law enforcement agencies must be kept out of the purview of the proposed Privacy law, and should be allowed to continue monitoring the activities and carry out electronic surveillance of citizens.

Home ministry is suggesting that the way intelligence and investigation agencies are exempted under schedule 2 of the Right to Information (RTI) Act, they should be kept out of the proposed privacy Bill in view of national security.

Under schedule 2 of the RTI Act, citizens are restricted from seeking information from agencies such as the Intelligence Bureau (IB), the Research and Analysis Wing, the Central Bureau of Investigation, the National Investigation Agency, the National Intelligence Grid and the National Technical Research Organisation.

Home ministry do not wants the privacy Bill to interfere with intelligence gathering activities even if means accommodating more safeguards in line with the sprit of the privacy Bill.

This seems to be an unreasonable demand as we must now stress upon great parliamentary scrutiny of intelligence agencies and law enforcement agencies. On the contrary we are diluting the constitutional freedoms and procedural safeguards. It is high time for parliament of India to interfere and enact constitutionally sound laws in this regard.