Pegasus is India’s Watergate moment

Context: In the light of the recent spyware attack, Pegasus intelligence gathering needs to be professionalised, parliamentary oversight introduced, and liberties and law protected.

Dilemma of judicious surveillance

• A civic necessity: While one cannot enjoy liberties provided under Constitution without national security, a small amount of surveillance is a civic necessity.
• Cost of surveillance: But national security is not meaningful if it comes at the cost of very liberties such security is supposed to allow us to enjoy.
• Excessive and unaccountable surveillance imperils privacy, freedom of thought, of speech and has a chilling effect on people’s behaviour while shattering the bedrock of the rule of law.

Surveillance related laws

• Laws authorising interception and monitoring of communications are Section 92 of the CrPC (for call records, etc.), Rule 419A of the Telegraph Rules, and the rules under Sections 69 and 69B of the I.T. Act.
• In 2014, the Ministry of Home Affairs told Parliament that nine central agencies and the DGPs of all States and Delhi were empowered to conduct an interception under the Indian Telegraph Act.
• In 2018, nine central agencies and one State agency were authorised to conduct intercepts under Section 69 of the I.T. Act.

Issues in legal surveillance framework

• Lack of clarity in the application of acts: It is unclear when Telegraph Act applies and when I.T. Act applies.
• Lack of clarity in powers of intelligence and security agencies: Intelligence Organisations Act, which restricts civil liberties of intelligence agency employees, only lists four agencies, while RTI Act lists 22 agencies as “intelligence and security organisations established by the central government” that are exempt from the RTI Act.
• A surveillance alphabet soup exists: Programmes such as CMS, TCIS, NETRA, CCTNS, and so on, none of which has been authorised by any statute and thus fall short of 2017 K.S. Puttaswamy judgment.

Attempts towards bringing in parliamentary oversight of intelligence agencies

• In 2010, then Vice-President Hamid Ansari called for a legislative basis for India’s agencies and creation of a standing committee of Parliament on intelligence to ensure that they remain accountable and respectful of civil liberties.
• In 2011, parliamentarian Manish Tewari introduced a private member’s Bill to bring intelligence agencies under a legislative framework. That Bill soon lapsed.
• In 2013, the Institute for Defence and Strategic Analysis published a report, “A Case for Intelligence Reforms in India”, a core recommendation of which was: “the intelligence agencies in India must be provided a legal framework for their existence and functioning;
• In 2018, the Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies are “potentially unconstitutional” since they are not constituted under a statute passed by Parliament — the National Intelligence Agency being an exception.
• In the 2019 election manifesto of the Indian National Congress called for parliamentary oversight of intelligence agencies.
• Taking a cue from U.S.’s Snowden revelations episode in 2013: Exposed over-reaching surveillance by NSA led to meaningful reforms in U.S. surveillance laws, and controversial domestic surveillance provisions of the PATRIOT Act expired in 2020.

Conclusion: Surveillance is like salt. A small amount of surveillance is necessary for the health of the body politic, just as salt is for the body; in excess, both are dangerous.

• India need reforms aimed at professionalising intelligence gathering, bringing intelligence agencies under parliamentary oversight, making them non-partisan, and protecting civil liberties.