For those agitated over the big brother snooping on their lives, there is more bad news in store as India’s external intelligence agency, the Research & Analysis Wing (R&AW) has been notified by the UPA government as an “authorised agen-cy” to legally intercept phone calls, e-mails and all forms of data, voice and electronic communications with immediate effect.
This is the first time in R&AW’s history since its inception in 1967 that it has been allowed to snoop on Indian citizens in addition to its espionage activities abroad.
The notification came a few weeks ago after the Union Ministry of Home Affairs (MHA) added the intelligence organisation to the list of eight recognised law enforcement agencies that have been authorised by the Supreme Court to legally intercept communications, senior government officials confirmed to DNA.
But the move also raises questions about the government’s intentions at a time when Union communications and IT minister Kapil Sibal let it slip that the government was planning to screen social media.
According to the notification, R&AW can now post its communication interception equipment at international gateways to spy on all forms of data, be it international telephony emanating from India, or any form of electronic data including e-mails. The move raises the question about the grey area of surveillance, privacy and citizen’s rights in the absence of any form of effective oversight mechanisms.
In the US and the UK, all intelligence agencies are governed by acts of Parliament along with safety mechanisms. In the UK, two acts give legitimacy to its intelligence agencies — the Secret Service Act, 1989 and the Intelligence Services Act, 1994 as well as the Regulation of Investigatory powers Act 2000.
These also established that all forms of phone tapping and espionage activities will be reviewed by groups of MPs chosen by the British prime minister. In the US, the Foreign Surveillance Intelligence Act regulates espionage activities along with a joint senate committee on intelligence.
Worryingly, India has lagged behind on this count despite the Constitution mandating that a “Central Intelligence Bureau” would be created by “an Act of Parliament”. However, while the IB was created by the colonial British authorities, R&AW and the NTRO were created by executive decisions.
None of these agencies are bound by any law passed by Parliament and their charters, methods, rules and regulations remains shrouded in secrecy. There are a few laws – the Indian Telegraph Act, specifically rule 419A, and the Information Technology Act that govern legal interception in a rudimentary manner.
Congress Lok Sabha MP Manish Tewari, who introduced a private member’s bill on bringing India’s intelligence agencies under a comprehensive act of Parliament, is alarmed. “The right to privacy has been interpreted by Supreme Court as a sub-set of the fundamental right to life. Therefore, it is indeed worrying that organisations with ambiguous legal foundations are transgressing fundamental freedoms guaranteed by the Constitution,” Tewari told DNA.
For R&AW, this is a major victory because it has been trying to get this status since 1997, soon after the Supreme Court judgement on phone tapping delivered in December 1996. The judgement had specified eight agencies – from the IB to the Income tax authorities – but R&AW was kept out. Two R&AW chiefs, CD Sahay and his successor P K Hormese Tharakan, tried to get the agency included but the UPA government turned them down.
In fact, the cabinet committee on security (CCS) had mandated in 2004 that the technical intelligence agency, NTRO, be allowed to legally intercept all Indian and foreign communications. NTRO was created soon after the Kargil war on the lines of the NSA, the American technical intelligence organisation that has formidable interception capabilities.
Now, this sudden decision has left NTRO in a lurch since it has been mandated and budgeted by the CCS to do this work, but lacks the minimal legal cover to do so. Either way, such widespread interception and surveillance has left many disturbed as the intrusive state peeps further into the private lives of ordinary citizens with any modicum of oversight or control.