The snooping saga using the Pegasus spyware is still pending adjudication in the Supreme Court.
The perpetual clash between the idea of security and the idea of privacy is a battle that animates the soul of all democratic institutions. Advocates for security propagate for an independent intelligence organisation that can monitor and prevent internal, and external, threats. On the other hand, advocates for privacy propagate for an intelligence organisation that operates within the realm of the law and is accountable to the citizen. For a democracy to function efficiently, it is imperative upon the “permanent establishment” to find the right balance between the two opposing perspectives.
It is unfortunate that over the recent years the “permanent establishment” has failed to maintain this delicate balance. On the contrary, the weaponisation of law enforcement and intelligence organisations in pursuit of its political machinations has become the norm rather than the exception with the situation becoming progressively worse with each passing day. The snooping saga using the Pegasus spyware is still pending adjudication in the Supreme Court. The decision would have profound implications either way on the Right to Privacy of both those resident in India and its citizens.
In the current Monsoon Session of Parliament, the government aims to pass the fundamentally flawed Digital Personal Data Protection Bill. A bill that claims to protect “personal data”. It is, therefore, imperative to return to the basics, and address the elephant in the room; i.e., the absence of any laws, rules or regulations governing the functioning of and oversight on intelligence agencies.
The Intelligence Bureau (IB) was created in 1887 via an administrative order of the British. It was in response to the rising challenge of Indian revolutionary activities. The IB was created with an objective to monitor, and control any political movements that promoted the idea of Indian independence. It is pertinent to note that the bureau had its allegiance to the then ‘establishment’, and not to the people. Seventy-six years post-independence, it is unfortunate the essential nature of the IB has not changed. It has no formal character, is devoid of any constitutional or statutory backing, and continues to remain in the shadows. Thus, the bureau, which should have morphed into an instrumentality to protect the sovereign has no accountability to it.
It is, therefore, imperative that there are proper checks and balances that must underpin the functioning of any institution. One of the biggest problems in India is that both law enforcement agencies and intelligence organisations have no sound legal basis. In 2009, I raised a question with regards to the legal basis of the IB, and the Research and Analysis Wing (RA&W). The government replied that the RA&W had no basis in law, while the IB derived its powers from being under Item No. 8 of the Union List under Schedule VII of the Constitution of India. However, this is can hardly be characterised as a legal basis of the IB.
It is unfortunate, yet gospel truth, that India still follows its colonial legacy of having an unnecessary and manufactured culture of secrecy regarding its intelligence apparatus. Other democratic institutions are transparent about the functioning of their intelligence regimes, and have an accountability to their respective legislative organs. For example, the United Kingdom has created the Intelligence Services Act, 1994. This sets up a mechanism for legislative oversight. The Act mandates for a committee which is appointed by the Prime Minister and includes the Leader of Opposition. This committee is directly responsible to the Parliament and is required to present a report before the Parliament periodically. Similarly, in the United States, the House of Representatives, and the Senate have their own Permanent Select Committee on Intelligence. This scrutinises the intelligence apparatus of the United States, and has extensive powers over the policy issues, and budgetary appropriations.
It is also pertinent to note that the absence of any legislative oversight on intelligence organisations results in providing them with untrammelled power; and this constitutes a potent and visible challenge to the very concept of the right to privacy.
In the judgment of K.S. Puttuswamy v Union of India, the Hon’ble Supreme Court recognised that the right to privacy is a fundamental right enshrined under Part III of the Indian Constitution. Similarly, the American judgment of Meyer v Nebraska, and the European judgment of Douglas v Hello recognised privacy as a right. Moreover, countries such as Japan and Singapore have enacted the Personal Information Protection Act, 2003, and the Personal Data Protection Act (PDPA) which codifies the protection of personal privacy. Thus, owing to its universal acceptability (state practice), and a belief carried out from a legal obligation necessary to protect the rights of the citizens (opinion juris), the right to privacy is a customary international law. Hence, the absence of any legislative oversight on intelligence organisations violates both municipal law as well as international law.
With an objective to provide a proper legal regime and ensure adherence with international law, in 2011, I moved a Private Members Bill entitled “The Intelligence Services (Powers and Regulation) Bill, 2011”. This bill aimed to: (1) regulate the manner of the functioning, and exercise of powers of Indian Intelligence Agencies within, and beyond the territory of India; (2) provide for the coordination, control, and oversight of such agencies. This bill attempted to ensure equilibrium between the idea of security, and privacy to ensure effective functioning of democracy. Unfortunately, this bill lapsed in October 2012 when I moved to government. I have introduced a similar bill with minor modification which has been re-tabled in the Parliament. It is a must that the Parliament take the bill qua intelligence agencies into immediate consideration and pass it without any further let or demur.
In conclusion, it is a must that transparent oversight and sound legal foundations are present to guide, and put a leash on the powers of institutions that have the means and ability to transgress upon the privacy of citizens. This is imperative to strike a delicate balance that upholds both the security of the state and privacy of the sovereign. It is the need of the hour for India to abandon its colonial legacy and embrace an accountable future.