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Delhi High Court directs Centre to detail the legal process used to intercept phones

The court directed the government to file a detailed reply to a petition challenging multiple surveillance projects.

“Point out in detail the law and procedure followed by the Union of India for monitoring and interception of phones,” the Delhi High Court ordered during a hearing on August 31, according to a LiveLaw report.  The court was hearing a petition filed by the Center for Public Interest Litigation (CPIL) and Software Freedom Law Center (SFLC) which challenges the validity of surveillance projects such as CMS (Centralised Monitoring System), NETRA (Network Traffic Analysis), and NATGRID (National Intelligence Grid). 

The three surveillance systems put together are believed to cast a wide snooping net on Indian citizens, like America’s PRISM programme, with very few checks and balances in place. Concerns against such surveillance systems have increased in light of the Pegasus controversy which revealed the true extent of state surveillance.

What happened during the hearing? 

Senior Advocate Prashant Bhushan, who appeared for the petitioners, argued that the widespread snooping arising out of these projects is an invasion of citizens’ right to privacy under Article 21 of the Constitution. He urged the bench to form a committee headed by a retired judge of the Supreme Court or the High Court to investigate these projects and the extent of their surveillance.

Bhushan, in his arguments, also charged that issuing interception orders has become routine and cited the following passage from a report by the Committee of Experts under the Chairmanship of Justice B.N. Srikrishna:

“For  each  of  these  mechanisms,  oversight  is  carried  out  through  a  Review  Committee  set  up  under  the  Telegraph  Rules.379  This  Committee  reviews  interception  orders  passed  under  the  Telegraph  Act  380  and  Section  69B  of  the  IT  Act.  It  consists  of  the  Cabinet  Secretary,  Secretary  to  the  Government  of  India  in  charge  of  Legal  Affairs  and  the  Secretary  to  the  Government  of  India  in  charge  of  Department  of  Telecommunications.  As  per  a  recent  RTI  application  to  the  Ministry  of  Home  Affairs,  it  has  been  found  that  about  7500-9000  such  orders are passed by the Central Government every month.381 The Review Committee has an  unrealistic  task  of  reviewing  15000-18000  interception  orders  in  every  meeting, while  meeting once in two months.”

Solicitor General Tushar Mehta sought time to file a detailed affidavit as he claimed that there was a similar matter pending before the Supreme Court of India.

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“I am not appearing in this matter but another matter is pending before Supreme Court. There are statutory rules in place which require us to seek permission. It also require periodical review also…There are Rules made under Section 69 r/w Section 84 of the IT Act…it cannot be decided on numbers, that 1,000 is okay but 7,000 permissions are not okay,” Mehta was quoted as saying by LiveLaw.

The bench comprising Chief Justice DN Patel and Justice Jyoti Singh, called for the next hearing to be held on September 30. It heeded the request of the Union government and ordered a detailed response based on Bhushan’s arguments.  

Details of the writ petition 

The writ petition, a copy of which MediaNama has seen, was filed before the Delhi High Court in December last year. It prayed for a court order to cease the operations of these surveillance projects permanently. The petition also urged the court to direct the Centre to establish a permanent independent oversight committee— judicial or parliamentary— to review lawful interception orders issued by the government. 

The petition opposes these surveillance projects on the following grounds:

  1. Violation of the right to privacy of citizens under Article 21 of the Constitution of India.
  2. Lack of an oversight mechanism to prevent unlawful surveillance.
  3. Violation of India’s obligations under the International Covenant on Civil and Political Rights (“ICCPR”) and the Universal Declaration of Human Rights (“UDHR”).
  4. Free speech is stifled due to the aggregation of metadata of an individual’s transactions such as financial information and travel information.
  5. Limits fundamental right to speech and expression under Article 19(1)(a) of the Constitution of India.
  6. Violation of principles laid down in the Puttaswamy judgment by the Supreme Court of India.
  7. Absence of a parliamentary or judicial oversight mechanism over interception and monitoring of communications.

SFLC, in a statement, had said: “Nobody fully knows or understands the complete extent or penetration of the surveillance projects which are being built and have possibly been operationalized by the government.”

“The Pegasus spyware snooping incident and the accompanying growth of surveillance infrastructure in India and around the world has solidified our concerns about the violation of the right to privacy of citizens. In light of the fact that the aforementioned projects are shrouded in secrecy, without an adequate and efficient judicial or parliamentary oversight mechanism, a lot of questions remain unaddressed,” the statement added.

What are CMS, NETRA and NATGRID? 

Centralised Monitoring System: It was floated in 2013 to monitor communications on mobile phones, landlines, and the internet. CMS provides government agencies with Direct Electronic Provisioning, Call Data Records (CDR) analysis, and data mining to identify personal information.

Network Traffic Analysis: It is an internet monitoring system conceived in 2014 which sniffs out suspicious words like ‘attack’, ‘bomb’, ‘blast’ or ‘kill’ in real time on social media, emails, instant messaging services, blogs, and others. NETRA will monitor voice traffic on services like Skype, and facilitate setting up of a national internet scanning & coordination centre, similar to ones present in the United States, United Kingdom, China, and others.

National Intelligence Grid: It was revived by Home Minister Amit Shah in 2019 after being delayed for years. NATGRID  links multiple public and private databases together and makes this data available to intelligence agencies. It automates existing manual processes for the collation of intelligence information by connecting over 21 data sources like telecommunication, banking, airlines etc.

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