Intelligence Agencies Reforms In India Are Urgently Needed

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBIntelligence Agencies play an important role in protecting National Security of a country. They help in maintaining Internal and External Security of a Nation. The very nature of their functioning and work requires some degree of Anonymity, Secrecy and Confidentiality. However, this must not be confused with “Non Accountability” and “Lack of Transparency”. Unfortunately, Indian Intelligence Agencies have become synonymous to Non Accountability and Lack of Transparency.

World over it has been accepted that there must be a balance between National Security and Civil Liberties Protection. The United Nations (UN) Third Committee has also approved a text titled Right to Privacy in the Digital Age. This is in recognition of the Privacy Right in the Information Era that has gained prominence off late. It also means that the Big Brother must not “Exceed its Limits” as prescribed by the Human Rights and Civil Liberties Protection in Cyberspace.

India is clearly inclined to become an “Endemic E-Surveillance State” with no respect for Constitutional Rights and Civil Liberties. The journey of India “From Welfare State to E-Police State” began in 2009 with the notification of Information Technology Amendment Act, 2008 and it became complete in the year 2014 with the introduction of E-Surveillance Projects like Central Monitoring System (CMS) and Internet Spy System Network And Traffic Analysis System (NETRA) of India. I even suggested in May 2013 that Indian CMS must be subject to Prime Minister Office (PMO) “Scrutiny and Intervention”.

Nevertheless, the Big Brother Initiatives in India remained unaffected. In fact, the Congress Government made it “Absolutely Sure” that various E-Surveillance Projects are not only “Kept Alive” but they should also be “Made Immune from Judicial Scrutiny”. Our Constitutional Courts also did not consider it necessary to interfere and take appropriate actions.

To make the matter worst, we have no E-Surveillance Policy of India. It is now well known that Indian Government forced Telecom Companies like Vodafone to install “Secret Wires” to indulge in Unconstitutional E-Surveillance and Phone Tapping. Similarly, Indian Telecom Infrastructures have been constantly used for indulging in Unconstitutional E-Surveillance Practices as we have no implementable Telecom Security Policy in India.

In other jurisdictions, new methods of E-Surveillance are devised on regular basis. For instance, use of Radio Waves and Malware United State’s NSA for World Wide E-Surveillance is well known. The Department of Justice (DOJ) has recently announced a New Reporting Methods for National Security Orders. India on the other hand, is not at all interested in making its Intelligence Agencies and E-Surveillance Projects “Accountable to the Parliament”. This is a situation that needs to be urgently changed as it “Undermining the Constitution” and “Rule of Law” has no meaning and significance in these circumstances.

Indian Government does not understand and accept that Law Enforcement and Intelligence Work is “Not an Excuse for Non Accountability”. For some strange reasons Intelligence Infrastructure of India has become synonymous to Unaccountability and Mess. There is neither any Parliamentary Oversight nor and Transparency and Accountability of the working of Intelligence Agencies of India.

Perry4Law has already provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” (PDF) to the Government of India in September 2009. However, the Indian Government failed to act upon the same and to formulate a Techno Legal Framework accordingly.

In a Recent Landmark Judgment (PDF), the constitution of CBI was held Unconstitutional by Gauhati High Court. In my personal opinion, the decision of Gauhati High Court declaring CBI unconstitutional is “Legally Sustainable”. Although almost all have criticised this decision of Gauhati High Court yet it is “Neither Absurd nor an Uncalled One”. Parliamentary Oversight of any Law Enforcement Agency is the “Core Requirement” under Indian Constitution. However, our Intelligence Agencies and many Law Enforcement Agencies, including CBI, are not governed by any sort of Parliamentary Oversight.

Unfortunately, the Supreme Court of India stayed this decision. This may be for a good cause if the Modi Government utilises this opportunity to formulate suitable Law for CBI and other Intelligence Agencies of India. However, this exercise of Supreme Court would be the “Most Unfortunate One” if there is no action in this regard by the Modi Government. So what should be the Modi Government’s next step?

Firstly, there is an urgent need to repeal draconian laws like Telegraph Law and Indian Cyber Law. Secondly, there is a dire need to formulate dedicated Telephone Tapping Law of India as soon as possible. Thirdly, India “Must Reconcile” the Civil Liberties and National Security Requirements but the same is presently missing. Indian Government is also “Not Serious” about formulating a dedicated Privacy Law for India. Data Protection and Privacy Rights in India are in real bad shape.

Fourthly, India’s own Projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), NETRA, etc are violative of Civil Liberties Protection in Cyberspace. None of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny. In short, Intelligence Infrastructure of India needs Transparency and Strengthening to make it “Effective and Accountable”.

With the new Government some action in this regard is expected but only time would tell whether Modi Government would “simply step into the shoes of Congress” or actually protect the Constitutional Rights of Indian Citizens.