The Centre has told the Delhi High Court that no blanket permission has been granted to any agency for interception or monitoring or decryption of any messages or information under the surveillance programmes like the Centralised Monitoring System (CMS), Network Traffic Analysis (NETRA), and National Intelligence Grid (NATGRID).
It said that the lawful interception or monitoring or decryption of any message or class of messages or any information stored in any computer resources, is done by authorised law enforcement agencies having legal and statutory powers and after due approval by the competent authority in each case.
The government, in its affidavit, defended the need for CMS, NETRA, and NATGRID surveillance systems saying that “grave threats to the country from terrorism, radicalisation, cross border terrorism, cybercrime, organized crime, drug cartels cannot be understated or ignored” and a robust mechanism “for timely and speedy collection of actionable intelligence including signal intelligence is imperative to counter threats to national security”.
The government said it is undeniably in legitimate state interest and is imperative that the requests for lawful interception or monitoring must be dealt with by the executive authority to maintain speed and promptitude in taking decisions.
The joint affidavit was filed by the Ministry of Home Affairs (MHA), Communication Ministry and Ministry of Electronics and Information Technology in response to a PIL which has claimed that citizens’ right to privacy was being “endangered” by these surveillance programmes.
“The lawful interception or monitoring or decryption of any message or class of messages or any information stored in any computer resources is done by authorised law enforcement agencies having legal and statutory powers and after due approval in each case by the competent authority as per the provisions of the Indian Telegraph Act and the Information Technology Act,” the affidavit, filed through central government standing counsel Ajay Digpaul, said.
The joint plea filed by NGOs Centre for Public Interest Litigation (CPIL) and Software Freedom Law Centre (SFLC), through advocate Prashant Bhushan, has claimed that these surveillance systems allow central and state law enforcement agencies to intercept and monitor all telecommunications in bulk which is an infringement of the fundamental right to privacy of individuals.
The NGOs have contended that under the existing legal framework there is an “insufficient oversight mechanism” to authorise and review the interception and monitoring orders issued by the state agencies.
The NGOs have sought directions to the Centre to “permanently stop the execution and the operation of the surveillance projects, CMS, NETRA, and NATGRID, which allows for bulk collection and analysis of personal data.
The Centre said the prayers in the petition altogether are “misconceived, wrong and denied and to be rejected outrightly” and added that it appeared that the facts put forth by the petitioner are not sustainable and acceptable and the plea is liable to be rejected being devoid of merit.
The government, in its affidavit, said “There is no blanket permission to any agency for interception or monitoring or decryption, and permission from the competent authority is required as per the due process of law and rules in each case.” The government denied the NGOs’ allegation that permissions are granted mechanically and claimed that each proposal is scrutinised by a dedicated unit of the MHA “with strict security and confidentiality” before it is considered by the Home Secretary for approval.
It contended there is a sufficient mechanism of oversight in place in the form of a Review Committee, headed by the Cabinet Secretary at the centre and chief secretary at the state level, which examines if the approval has been given in accordance with the law.
It said the safeguards and review mechanism have been prescribed under the rules and the Standard Operating Procedure (SOP) issued for the purpose.