The legislation would have implemented procedural safeguards for intelligence agencies, required warrants for intercepting communication, and established a tribunal for investigating complaints.
The recently reported cyberattack on several key politicians, journalists, and activists using NSO Group’s Pegasus spyware has laid bare a key point — India does not have a data protection law but desperately needs one. Although, if the current version of the Personal Data Protection Bill is enacted into law, government agencies will be exempted from its provisions. Thus, one may argue that there is a need for legislation whose ambit also encompasses governments, especially since the NSO Group has stated that they only sell their products to vetted governments and its agencies.
A decade ago, a Congress politician had proposed legislation that would do just that. In 2011, Lok Sabha MP Manish Tewari had introduced a bill that regulates intelligence agencies responsible for maintaining internal security and combating external threats. The bill “The Intelligence Services (Powers and Regulation) Bill” was brought in by Tewari because he felt that an individual’s right to privacy is compromised when intelligence agencies take up surveillance operations.
Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The Supreme Court of India has carved a right to privacy from the right to life and personal liberty. Such rights to privacy are compromised when agencies undertake surveillance operations. In Re: Peoples Union of Civil Liberties vs. Union of India, the Supreme Court issued detailed guidelines regarding telephone tapping. A proper legal framework is required to regulate surveillance of other forms, using different technologies, as well. — Congress MP Manish Tewari in his 2011 Private Member’s Bill
Why this matters: Although it has been 10 years since this bill was introduced (it eventually lapsed), when MediaNama reached out to policy experts about the Pegasus spyware issue, most of them made a mention of this bill while talking about reforms that can prevent the misuse of surveillance in the future. Hence, we felt that it was necessary to highlight the provisions of the bill, what it envisioned, and how it proposed to regulate intelligence agencies and their usage of surveillance.
Definitions mentioned in the Bill
- Indian territory – Same meaning as is ascribed to the territory of India under Article 1 of the Constitution.
- Law enforcement agency – This includes (a) any Government department; and b) any other person charged with the duty of investigating offences or charging offenders.
- National security: includes the sovereignty, territorial integrity, economic stability, and upholding of the Constitution.
- Prescribed: It means prescribed by rules made under this Act;
- Sensitive information: (a) an information which might lead to the identification of, or provide details of the sources of information or operational methods used by the R&AW, the IB, and the NTRO; (b) information about specific operations which have been, are being or are proposed to be undertaken in pursuance of any of the functions of those bodies; and (c) information provided by the Government or an agency of any other country which does not consent to the disclosure of the information
- Threats to national security include:—
(a) Terrorist acts, including international terrorism;
(b) Espionage directed against the country or otherwise detrimental to the security of the country;
(c) Sabotage directed against the vital national infrastructure of the country or otherwise directed against the country;
(d) Organised crime directed against the country or otherwise detrimental to the security of the country;
(e) Drug, arms, and human trafficking directed against the country or otherwise detrimental to the security of the country
(f) Illegal international proliferation of weapons of mass destruction or the components thereof as well as materials and tools required for their production;
(g) Illegal trafficking of internationally controlled products and technologies; and
(h) Organised acts of violence or intimidation against ethnic or religious groups within the country;
- Terrorist act: It shall have the same meaning as ascribed to it in the Unlawful Activities (Prevention) Act, 1967; and Definitions.
Bill’s proposals for various intelligence agencies
Tewari in his bill had proposed several procedural safeguards that intelligence agencies such as the Research and Analysis Wing (RAW), Intelligence Bureau (IB), and National Technical Research Organisation (NTRO) have to follow
Research and Analysis Wing (RAW): The day-to-day operation of the agency shall be designated to an officer not below the rank of the Secretary of the Government of India who shall be appointed by the Prime Minister and who shall hold office for a period of two years or till is 62 years old. Few of his duties would have been to ensure that —
- No information is collected and used by the RAW except what is necessary for the discharge of its functions and that no information under their custody is disclosed by it except so far as necessary for the proper and efficacious conduct of functions assigned to it
- The RAW does not take any action that furthers the interests of any political party or coalition of political parties or other such interest groups
- Tewari also proposed that the agency should submit a bi-annual report on the working of the agency to the Prime Minister and made clear that the RAW head will not be eligible for reappointment to any post under the State except as an Advisor to the government
Intelligence Bureau (IB): Tewari’s proposed procedural safeguards for the Intelligence Bureau were the same as what he had proposed for the RAW.
National Technical Research Organisation (NTRO): The NTRO’s role as proposed by the Bill, will be to intercept communications beyond the territorial boundaries of India and will also monitor the usage of equipment that facilitate such communication. Tewari said that this can only be done in the interests of national security, in the interest of economic well-being, and “in support of prevention, detection, interdiction or investigation of such crimes as may be assigned to it by the Prime Minister.” Its chairman will be responsible for —
- No information is obtained by NTRO except when it is necessary for the discharge of its functions under the Act and that no information is disclosed to any person or agency except when it is necessary for the discharge of its functions or for the purpose of any matter connected with ensuring the security, stability, and sovereignty of the country
- It should not take any action that furthers only the interests of any political party or similar interest group
‘Warrant necessary for interference with communication’
In the “Authorisation and Procedures” sections of the bill, Tewari proposed that an intelligence agency cannot enter any property, or interfere with any form of communication including wireless telegraphy unless it is authorised by a warrant issued by the authority designated for the purpose. The provisions of the bill also allows the Prime Minister to authorise a warrant in urgent cases.
For granting the warrant, say to NTRO, the designated authority will have to be satisfied that their functions of surveillance are in line with national security, in the interest of economic well-being, and as assigned by the Prime Minister. The designated authority will also have to make sure that there are no other measures available for achieving the objective. A warrant will be eligible for three months and the designated authority will have the power to cancel the warrant.
The Designated Authority shall not give authorisation under this section unless he or she is satisifed that arrangements are in force to ensure —
- That nothing is done in reliance on the authorisation beyond what is necessary for the proper discharge of a function of the RAW or the NTRO
- That, nature and likely consequences of the surveillance functions will be reasonable, having regard to the purposes for which they are carried out
- That satisfactory arrangements are in force with respect to the disclosure of information obtained by virtue of this section and that any information obtained by virtue of anything done in reliance on the authorisation will be subject to those arrangements
National Intelligence and Security Oversight Committee to ensure compliance with policy
Tewari proposed the establishment of a National Intelligence and Security Oversight Committee which would comprise:
- Chairman of the Council of States, Chairperson
- Cabinet Secretary shall be the Secretary to the Committee (ex-officio)
- Speaker of the House of the People
- Prime Minister
- Minister of Home Affairs
- Leader of Opposition in the House of the People
- Leader of Opposition in the Council of States
- One member each from the House of the People and the Council of States to be nominated by the presiding officers of the respective Houses as members
Regarding Committee’s access to information: Tewari proposed that if the Director of the IB or similar heads of the RAW and NTRO is asked by the committee to disclose any information under their custody then they shall —
- Arrange for it to be made available
- Inform the committee that it cannot be disclosed because it is sensitive information or if the Prime Minister has certified that it should not be disclosed
However, the bill also says, “The fact that any particular information is sensitive shall not prevent its disclosure, if the Director, IB or the head of the RAW or the Chairman of the NTRO as the case may be, consider it safe to disclose.”
National Intelligence Tribunal for investigating complaints against intelligence agencies
Tewari in his bill proposed the establishment of the National Intelligence Tribunal for the purpose of investigating complaints against RAW, IB, or the NTRO. It shall comprise —
- A chairperson who shall be a sitting or a retired judge of the Supreme Court to be appointed by the Union government
- One member who is or has been a judge of the High Court to be appointed by the Union in consultation with the Chief Justice of the High Court
- One member who will be appointed among persons who have been the head of the IB, the RAW
Functions of the tribunal
- The Chairperson shall have the power to review the exercise of the State of its power of issuing authorisations of warrants. The Tribunal shall submit a bi-annual report on their functioning to the PM. The latter can submit the report in the Parliament.
Jurisdiction and powers
- The government should implement orders of the Tribunal
- Intelligence agencies should disclose information or documents as required by the Tribunal
- The Tribunal will have the same powers as are vested in a Civil Court under the Code of the Civil Procedure, 1908 for summoning and enforcing attendance of any person; requiring the discovery and production of documents; receiving evidence on affidavits; issuing commissions for the examination of witnesses or documents
- The Tribunal can refer back to the warrant designating authority for deciding the efficacy of warrants
- The Tribunal will have to address a complaint within 45 days of receiving the complaint
Who can complain?
“Any person may complain to the Tribunal if he is aggrieved by anything which he believes the R&AW or the IB or the NTRO, as the case may be, has wrongfully done in relation to him or to his property. On receipt of a complaint by any person aggrieved by the actions of the R&AW or the IB or the NTRO, as the case may be, if the Tribunal, after such inquiry, as it may deem necessary, is satisfied that it is fit for adjudication by it, admit such complaint; but where the Tribunal is not satisfied, it may dismiss the application after recording its reasons in writing,” the bill said.
The Tribunal can investigate the complaints made by the complainant — whether they had obtained or provided information or performed any other tasks in relation to the submissions of the complainant and whether the intelligence agencies had reasonable grounds for taking the action
Tewari in his bill proposed penalties for intelligence agencies if it was found that the surveillance measures deployed by intelligence agencies did not have reasonable grounds. They are —
- Records relating to such information obtained or provided should be destroyed
- Compensation should be paid to the person who has been aggrieved by the actions of intelligence agencies
- Restitution of property damaged by such actions
- Quashing of any warrant or authorisation which Tribunal finds to be improperly issued
- Proceedings against persons responsible under applicable laws and statutes
Apart from this, Tewari in his bill had proposed a mechanism of appeal at the Supreme Court for those aggrieved with the decision of the Tribunal.
More reading on Pegasus
- A Guide To The NSO Group’s Pegasus Spyware In India
- Members Of Parliament React To Pegasus Spyware Controversy Amidst Monsoon Session
- ‘Illegal And Deplorable’: How Pegasus Spyware Targets In India Are Reacting
- Amazon Web Services shuts down infrastructure linked to Pegasus vendor NSO Group