India’s Central Monitoring System, which gives security agencies the power to snoop into over 1060 million e-mail accounts, mobile phones and social networking sites, has been compared to the PRISM programme of the United States.
With the news floating around, there are many who have already questioned the legality of the system which defies a major provision in the Constitution of India known as the Right to Privacy.
Cyber law expert Pavan Duggal explains the challenges that the CMS and the citizens of the country would face in the time to come.
"Assuming that the reports regarding the setting of CMS are credible, there are going to be some fundamental issues and challenges before it.
The Information Technology Act of 2000 had only provided the power to directing interception under Section 69 of the act.
However, the attacks of 26/11 only showed the need for far more proactive monitoring.
Consequently, the IT Act was amended in 2008 giving huge powers of interception, monitoring, decryption and blocking of information. These powers were given under Sections 69 (A) and 69 (B) of the amended IT Act.
As per the amendment, the power to snoop could be exercised for monitoring if the government was satisfied that it was necessary to do so.
The government of India could give such permission in the interest of the security of the nation, friendly relations with other nations, public order or for preventing incitement and commission of any cognisable offence.
The Act clearly states that there is a need for the central government to grant permission prior to interception or monitoring.
If one looks at the law per se, it has been drafted to keep in mind specific instances of interception. The law does not envisage a blanket or umbrella system of monitoring as has been proposed under the CMS.
If the CMS is supposed to be what it is being doing then are legal challenges.
There are several legal hurdles before the CMS.
There is no enabling legal framework in the country to support the CMS. There appears to be no checks and balances.
The guidelines issued by the Supreme Court in the PUCL case related to specific instances of telephone tapping, which has been adopted under Section 69 of the IT Act, have not been followed in the CMS system. There is an urgent need to have new parameters.
Such a system could impact speech and expression and also the civil liberties of citizens of the country. No doubt the law is very clear that in the event of a conflict between national interest and individual liberties, the former shall prevail. However, when we speak of an umbrella monitoring mechanism, it not only targets the suspects and their activities but even the lawful activities of law abiding citizens who have no connection with any criminal, crime or design.
We do not have a dedicated legislation on privacy, which lets the government to come up with such a system. Hence, the same would be amenable to judicial review and aggrieved persons could challenge the same in the writ jurisdiction of either the Supreme Court or the high court.
What the makers of the CMS should realise is that Sections 69 (A) and (B) would not suffice in this case. The government will need to further amend the act to enable provisions that would help such activity under CMS.
We need to be aware that we are following the PRISM model of the United States, which after 9/11 was willing to forego fundamental rights envisaged under democracy in national interest.”
As told to Vicky Nanjappa