SATURDAY, OCTOBER 16, 2010
“Will New Intelligence Grid Make India a Police State?” by Ravi Visvesvaraya Sharada Prasad Published in Asian Age, issue of Friday, 15 October 2010
“Will New Intelligence Grid Make India a Police State?” by Ravi Visvesvaraya Sharada Prasad
Copyright, 2010, Ravi Visvesvaraya Sharada Prasad, being the original author.
International Publishing Rights, in all Media, in all languages, in all jurisdictions, with Asian Age.
Reproduction and forwarding are strictly prohibited except with the prior written permission of both the original author and copyright holder, Ravi Visvesvaraya Sharada Prasad, and the first publisher, Asian Age.
Ravi Visvesvaraya Sharada Prasad
Tel: {91} 99 90 265 822, 98 118 36 331
P @ r 67 . net r @ 50 g . com
“Will New Intelligence Grid Make India a Police State?” by Ravi Visvesvaraya Sharada Prasad
The National Intelligence Grid (NatGrid), which has just been set up by Home Minister P Chidambaram, will turn India into an Orwellian police state. It has been opposed by Finance Minister Pranab Mukherjee, who argued that it infringes the privacy of citizens, and may be unconstitutional.
Under NatGrid, security agencies will be able to access sensitive personal information of all individuals, such as bank accounts, insurance policies held, property owned or rented, railway and airline tickets booked, income tax returns, driving records, automobiles owned or leased, credit card transactions, stock market transactions, educational background, phone calls, emails and SMSs, websites visited, etc.
Under NatGrid, eleven agencies of the government (including Research and Analysis Wing, Intelligence Bureau, Revenue Intelligence, Enforcement Directorate, Military Intelligence, etc.) will be permitted to easily access computer databases of organizations in the private and public sectors as well as of central and state government agencies, such as banks, insurance companies, stock exchanges, land records, airlines, railways, telecom service providers, educational institutions, credit card issuers, chemical vendors, etc.
On 1 October, the Reserve Bank of India called a meeting of commercial banks in Mumbai to implement procedures by which they would quickly provide information about their customers to computerized inquiries from governmental agencies through NatGrid. Pranab Mukherjee sent a strong note to RBI stating that invading the privacy of bank depositors was not acceptable, and would discredit the entire banking system. It would instead push people into using cash transactions and hawala, Mukherjee warned, adding that this would lead to further tax evasion.
Mukherjee was not convinced by Chidambaram’s assertion that unauthorized persons would not be allowed to access sensitive personal information of Indian citizens, and that the information obtained by NatGrid would not be leaked out, nor used to blackmail or harass innocent citizens.
Today, an Indian citizen has absolutely no legal protection against surveillance by the government. The right of privacy enshrined by the Supreme Court of India in several judgements has been overturned by Parliament by the passage of the Information Technology (Amendment) Act 2008. In the case of R. R. Gopal versus State of Tamil Nadu, the Supreme Court in 1994 held that a citizen had a right to be let alone, and further had “the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others...” It is noteworthy that no objections were raised in Parliament by any political party when the UPA government passed this Act which removed certain safeguards regarding electronic surveillance.
Prior to the notification of the Information Technology (Amendment) Act 2008 in the Gazette of India on 5 February 2009, phone tapping was governed by Clause 5 (2) of the Indian Telegraph Act of 1885, which was drafted to protect the interests of the British Raj.
5 (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:
The People's Union for Civil Liberties filed a Writ Petition in the Supreme Court in 1991, challenging the constitutional validity of section 5(2) of the Telegraph Act, arguing that it infringed the constitutional right to freedom of speech and expression (Article 19(1)(a) of the Constitution) and to life and personal liberty (Article 21). In December 1996, the Supreme Court delivered its judgment:
“Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in exercise, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India, etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.”
But now, Section 69 of the Information Technology (Amendment) Act 2008 drops all references to the essential criteria of public emergency or public safety, and has thereby circumvented the Supreme Court judgements. Even the Information Technology Act of 2000 only mentioned decryption; interception and monitoring were not mentioned at all there. Section 69 of the new IT Act of 2008 enhances the scope from the 2000 version of the IT Act to include interception and monitoring.
69. Powers To Issue Directions For Interception Or Monitoring Or Decryption Of Any Information Through Any Computer Resource (Substituted Vide ITAA 2008)
(1) Where the central Government or a State Government or any of its officer specially authorized by the Central Government or the State Government, as the case may be, in this behalf may, if is satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may, subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted received or stored through any computer resource.
The assertions of the National Intelligence Grid that it will have mechanisms to prevent leakage and that it will access only abstracted and approved subsets of information cannot be relied upon. Indeed, in a pending case about invasion of privacy under the Right to Information Act, a High Court observed:
“We have no clear definition of what is meant by "invasion of privacy" within the RTI Act. We have no equivalent of UK's Data Protection Act, 1998, Sec 2 of which, titled 'Sensitive Personal Data', reads as follows: "In this Act "sensitive personal data" means personal data consisting of information as to:
a) The racial or ethnic origin of the data subject. b) His political opinions. c) His religious beliefs or other beliefs of a similar nature. d) Whether he is a member of a Trade Union. e) His physical or mental health or condition. f) His sexual life. g) The commission or alleged commission by him of any offence. h) Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
If we were to construe privacy to mean protection of personal data, this would be a suitable starting point to help define the concept….”
To sum up, the removal of the essential criteria of “Public Emergency” and “Public Safety” in the amended IT Act of 2008 has permitted a legal situation which permits unfettered surveillance by the government. The amended IT Act of 2008, the National Intelligence Grid, and the Unique Identity Aadhaar scheme could be in violation of the Supreme Court’s rulings that a reasonable expectation of privacy derives from Article 21 of the Constitution. It is imperative that the government passes a Data Protection Act, and formulates stringent rules for surveillance by intelligence agencies. It is significant that the various High Courts of India prominently quote the definition of personal privacy in UK’s Data Protection Act while they hear appeals under the RTI Act.
Ravi Visvesvaraya Sharada Prasad, an alumnus of Carnegie Mellon and IIT Kanpur, heads a group on C4ISRT (Command, Control, Communications and Computers Intelligence, Surveillance, Reconnaissance and Targeting) in South Asia.
“Will New Intelligence Grid Make India a Police State?” by Ravi Visvesvaraya Sharada Prasad Published in Asian Age, issue of Friday, 15 October 2010
“Will New Intelligence Grid Make India a Police State?” by Ravi Visvesvaraya Sharada Prasad
Copyright, 2010, Ravi Visvesvaraya Sharada Prasad, being the original author.
International Publishing Rights, in all Media, in all languages, in all jurisdictions, with Asian Age.
Reproduction and forwarding are strictly prohibited except with the prior written permission of both the original author and copyright holder, Ravi Visvesvaraya Sharada Prasad, and the first publisher, Asian Age.
Ravi Visvesvaraya Sharada Prasad
Tel: {91} 99 90 265 822, 98 118 36 331
P @ r 67 . net r @ 50 g . com
“Will New Intelligence Grid Make India a Police State?” by Ravi Visvesvaraya Sharada Prasad
The National Intelligence Grid (NatGrid), which has just been set up by Home Minister P Chidambaram, will turn India into an Orwellian police state. It has been opposed by Finance Minister Pranab Mukherjee, who argued that it infringes the privacy of citizens, and may be unconstitutional.
Under NatGrid, security agencies will be able to access sensitive personal information of all individuals, such as bank accounts, insurance policies held, property owned or rented, railway and airline tickets booked, income tax returns, driving records, automobiles owned or leased, credit card transactions, stock market transactions, educational background, phone calls, emails and SMSs, websites visited, etc.
Under NatGrid, eleven agencies of the government (including Research and Analysis Wing, Intelligence Bureau, Revenue Intelligence, Enforcement Directorate, Military Intelligence, etc.) will be permitted to easily access computer databases of organizations in the private and public sectors as well as of central and state government agencies, such as banks, insurance companies, stock exchanges, land records, airlines, railways, telecom service providers, educational institutions, credit card issuers, chemical vendors, etc.
On 1 October, the Reserve Bank of India called a meeting of commercial banks in Mumbai to implement procedures by which they would quickly provide information about their customers to computerized inquiries from governmental agencies through NatGrid. Pranab Mukherjee sent a strong note to RBI stating that invading the privacy of bank depositors was not acceptable, and would discredit the entire banking system. It would instead push people into using cash transactions and hawala, Mukherjee warned, adding that this would lead to further tax evasion.
Mukherjee was not convinced by Chidambaram’s assertion that unauthorized persons would not be allowed to access sensitive personal information of Indian citizens, and that the information obtained by NatGrid would not be leaked out, nor used to blackmail or harass innocent citizens.
Today, an Indian citizen has absolutely no legal protection against surveillance by the government. The right of privacy enshrined by the Supreme Court of India in several judgements has been overturned by Parliament by the passage of the Information Technology (Amendment) Act 2008. In the case of R. R. Gopal versus State of Tamil Nadu, the Supreme Court in 1994 held that a citizen had a right to be let alone, and further had “the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others...” It is noteworthy that no objections were raised in Parliament by any political party when the UPA government passed this Act which removed certain safeguards regarding electronic surveillance.
Prior to the notification of the Information Technology (Amendment) Act 2008 in the Gazette of India on 5 February 2009, phone tapping was governed by Clause 5 (2) of the Indian Telegraph Act of 1885, which was drafted to protect the interests of the British Raj.
5 (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:
The People's Union for Civil Liberties filed a Writ Petition in the Supreme Court in 1991, challenging the constitutional validity of section 5(2) of the Telegraph Act, arguing that it infringed the constitutional right to freedom of speech and expression (Article 19(1)(a) of the Constitution) and to life and personal liberty (Article 21). In December 1996, the Supreme Court delivered its judgment:
“Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in exercise, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India, etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.”
But now, Section 69 of the Information Technology (Amendment) Act 2008 drops all references to the essential criteria of public emergency or public safety, and has thereby circumvented the Supreme Court judgements. Even the Information Technology Act of 2000 only mentioned decryption; interception and monitoring were not mentioned at all there. Section 69 of the new IT Act of 2008 enhances the scope from the 2000 version of the IT Act to include interception and monitoring.
69. Powers To Issue Directions For Interception Or Monitoring Or Decryption Of Any Information Through Any Computer Resource (Substituted Vide ITAA 2008)
(1) Where the central Government or a State Government or any of its officer specially authorized by the Central Government or the State Government, as the case may be, in this behalf may, if is satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may, subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted received or stored through any computer resource.
The assertions of the National Intelligence Grid that it will have mechanisms to prevent leakage and that it will access only abstracted and approved subsets of information cannot be relied upon. Indeed, in a pending case about invasion of privacy under the Right to Information Act, a High Court observed:
“We have no clear definition of what is meant by "invasion of privacy" within the RTI Act. We have no equivalent of UK's Data Protection Act, 1998, Sec 2 of which, titled 'Sensitive Personal Data', reads as follows: "In this Act "sensitive personal data" means personal data consisting of information as to:
a) The racial or ethnic origin of the data subject. b) His political opinions. c) His religious beliefs or other beliefs of a similar nature. d) Whether he is a member of a Trade Union. e) His physical or mental health or condition. f) His sexual life. g) The commission or alleged commission by him of any offence. h) Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
If we were to construe privacy to mean protection of personal data, this would be a suitable starting point to help define the concept….”
To sum up, the removal of the essential criteria of “Public Emergency” and “Public Safety” in the amended IT Act of 2008 has permitted a legal situation which permits unfettered surveillance by the government. The amended IT Act of 2008, the National Intelligence Grid, and the Unique Identity Aadhaar scheme could be in violation of the Supreme Court’s rulings that a reasonable expectation of privacy derives from Article 21 of the Constitution. It is imperative that the government passes a Data Protection Act, and formulates stringent rules for surveillance by intelligence agencies. It is significant that the various High Courts of India prominently quote the definition of personal privacy in UK’s Data Protection Act while they hear appeals under the RTI Act.
Ravi Visvesvaraya Sharada Prasad, an alumnus of Carnegie Mellon and IIT Kanpur, heads a group on C4ISRT (Command, Control, Communications and Computers Intelligence, Surveillance, Reconnaissance and Targeting) in South Asia.
