There have been a lot of reports suggesting government’s attempts to get a free hand on surveillance and intelligence activities.

Last month, the Union Home Ministry granted nine central agencies and the Delhi police commissioner to “intercept, monitor and decrypt” information transmitted by or stored in any computer.

What’s following is another alarming move. Reports suggest that government is trying to exempt the intelligence and security agencies from the provisions of the proposed data protection bill in a manner similar to what is contained in Section 24 of the RTI Act. This would give them unfettered freedom to conduct surveillance and collect data in whichever manner.

This is a significant deviation from the position taken in the Justice Srikrishna Committee Report and the Draft Personal Data Protection Bill, 2018, says Akriti Gaur, Senior Resident Fellow at Vidhi Centre for Legal Policy.

According to the Srikrishna Committee, a data protection law must not provide blanket exemptions to any surveillance agency or any arm of the government that undertakes surveillance or monitors citizens unless such activity is authorised by a law passed by the Parliament.

This flows from the principles laid down in the landmark judgment of the Supreme Court of India in Justice K. S. Puttaswamy v. Union of India. As per the Court, any restriction on the privacy of an individual must be based on a law passed by Parliament, should be in furtherance of a legitimate state interest, and such law must satisfy the test of necessity and proportionality.

She adds, “A blanket exemption to surveillance agencies without adequate safeguards is a dangerous precedent. There is a need to bring such agencies within the ambit of a Parliamentary law that meets the test of necessity and proportionality to ensure legitimacy in their functioning, and accountability and transparency to the public at large in the form of reporting and Parliamentary oversight wherever feasible. Surveillance activities and executive orders to this effect must be amenable to ex ante judicial oversight.”

Currently, there is no comprehensive law to regulate the functioning of intelligence agencies in India. There are some piecemeal laws though. For instance, there is Indian Telegraphic Rules, 1951 that permits tapping of phones under certain situations. But, here too there is no judicial oversight or any method of accountability or transparency for surveillance agencies right now.

One of the reasons behind this is that in the current system, surveillance is carried out by mere executive orders. In fact, many agencies are set up by executive orders of the Central government and hence, are not obligated to follow norms of procedural fairness and are not accountable to the citizens or Parliament.