The notification issued by Ministry of Home Affairs on December 20, 2018 authorising ten central agencies to intercept, monitor and decrypt any computer information has been issued to "ensure that the right to privacy of law abiding citizens is not violated by any agency, intermediary or person", states the affidavit filed by the Central Government in Supreme Court.
The affidavit by Satinder Kumar Bhalla, Director of MHA, is filed in the petitions filed by M L Sharma, Internet Freedom Federation, Raman Jit Singh Chima and Mahua Moitra challenging Section 69 of the Information Technology Act, 2000 (IT Act) and The Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (2009 IT Rules), and the December 20 notification.
On January 14, the SC had directed the centre to file counter-affidavit in the petitions
The centre claims that the notification "not only streamlines but also restricts" the use of Section 69 and confines its use for legitimate state interests by specifying the agencies who can exercise the power and thereby confines it to "legitimate state interest".
Before this notification, the power under Section 69 was exercised as per a Standard Operating Procedure (SOP). However, the SOP did not provide with exactitude the agencies which would have the jurisdiction and competence to invoke provisions of Section 69.
The agencies authorised by the MHA to "intercept, monitor and decrypt "any information generated, transmitted, received or stored in any computer" are are :- Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, Cabinet Secretariat(RAW), Directorate of Signal Intelligence(For service areas of Jammu & Kashmir, North-East and Assam only), Commissioner of Police Delhi.
The purposes of issuing the notification are stated to be follows:
The centre assures that the 10 specified agencies can exercise the power only with the approval of the Union Home Secretary, who will authorise the same only in the interests of sovereignty and integrity of state, security of state, friendly relations with neighbouring states, public order or for preventing incitement to the commission of any cognizable offence.
"There is no blanket permission to any agency for interception or monitoring or decryption as the authorized agencies still require the permission of the competent authority. i.e Union Home Secretary in each case as per due process of law and justification for interception or monitoring or decryption.", states the affidavit dated February 21. It further states that the IT Rules have inbuilt safeguards which are adopted from the directions issued by the Supreme Court in the PUCL case in relation to phone tapping.
There is a Review Committee constituted under Rule 22, which will review whether actions of interception, monitoring and decryption by the agencies were in accordance with law, and on finding otherwise, the Committee can order the destruction of data so collected by the agencies.
Reasonable restrictions on right to privacy
The notification constitutes reasonable restrictions on right to privacy, states the affidavit. The notification is issued in accordance with law, for a legitimate aim, providing for interference which is proportionate with inbuilt procedural safeguards against abuse.
The centre says that the notification is justified by the grave threats of "terrorism, radicalization, cross border terrorism, organized crime, drug cartels etc, and the "veil of privacy" can be lifted to counter such threats to "national security".
A list of cases of terrorism and drug trafficking, which are claimed to have been busted using power of interception is annexed to the affidavit. The list contains 43 cases of 2018, which are at the stage of investigation.