NDA Union Government in the Ministry of Home Affairs (MHA) has issued a gazette notification authorizing ten Central Security and Intelligence Agencies to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource (computing device). The notification issued on December 20, 2018, under the Information Technology Act, 2000 and Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 framed under the IT Act, 2000, as amended in 2008. Any service provider not cooperating with any of the Central Agencies will invite imprisonment of seven years or fine or both.
Central agencies so authorized are: Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, Cabinet Secretariat (Research & Analysis Wing), Directorate of Signal Intelligence (For service areas of Jammu and Kashmir, North-East and Assam only), and Delhi Police Commissioner.
Orders to intercept all computing devices that includes mobile phones as well are anti-people as it attacks their fundamental right to privacy ordained by the Supreme Court of India, affects their fundamental rights to all freedoms and personal liberty guaranteed by the Constitution of India and the rule of law based democratic governance where people are sovereign masters of the government of transient majority that they elect. It is, therefore, anti-democratic. It is also unconstitutional (ultra virus the Constitution) as it militates against citizens’ fundamental right to privacy. Orders also fortifies the currents of undeclared emergency being felt by people at large since 2014 with simmering fear and insecurity among people, of course, without formal suspension of fundamental rights.
It will also work as instruments of harassment for police to frame people on built-in biases, prejudices, discriminatory conduct of the enforcement agencies and public trust deficit that they are suffering from, in flagrant violations of laws enjoining them to be fair and non-discriminatory. It also empowers the political masters to frame and harass innocent, peace loving and law abiding citizens. Well meaning people of goodwill fear enforcement agencies will get a handle to interpret or misinterpret arbitrarily free flow of information, impacting adversely multiple flow of information for evolution of spirit of inquiry and scientific temper. This also reinforces that the NDA Union Government is fascistic and dictatorial. People have already witnessed how it tried its best to make India a surveillance state and police state and how it was frustrated in its strident attempt by the Supreme Court to use biometric Aadhar identity of people for defiling their privacy and spying on them, ostensibly all on the pretext of strengthening country’s security.
It is well settled law that any legal provision, law and regulation that is not in consonance with the Constitution or citizens’ fundamental rights is ultra virus the Constitution and unsustainable. Since the provision of the IT Act, 2000 and the Rules framed there under predate the nine-judge Constitution Bench of the Supreme Court of India’s unanimous orders making privacy a fundamental right, rendering the impugned order automatically null and void. If some well meaning people challenge the impugned draconian order, the Apex Court should be upholding people’s fundamental rights, as usual!