Ministry of Home Affairs surveillance order challenged in Supreme Court

Bar & Bench December 24 2018
Computer Interception, MInistry of Home Affairs, security agencies

The recent order of the Union Ministry of Home Affairs (MHA) authorising ten security and intelligence agencies to intercept, monitor, and decrypt information has been challenged in the Supreme Court.

The order, issued on December 20, has been challenged by Advocate ML Sharma as being illegal, unconstitutional and contrary to public interest.

One of the grounds of the challenge is the apprehension that citizens may be penalized for expressing views opposing those of the government’s.

“Because impugned order has been issued to find political opponent, thinker and speaker to control entire country under dictatorship to win coming general election under an undisclosed emergency as well as slavery which cannot be permitted within the constitution of India (sic).”

The petition also apprehends a serious danger and injury to the freedom, life and liberty of the citizens of India.

It is also stated that the order is silent on the reasons for equipping the investigating agencies with such vast powers, and that the agencies may investigate any person without recording reasons in writing. This, Sharma contends, goes against the principles of the Code of Criminal Procedure (CrPC), as the state may take action against a citizen without registering an FIR.

Further, it is contended that the order must be tested on the touchstone of the Right to Privacy, which was recognized by the Supreme Court as a fundamental right.

Thus, it has been prayed that the impugned order be quashed, and that the Centre be prohibited from initiating any criminal proceedings or investigation under Sections 66 and 67 of the Information Technology Act, as per the terms of the order.

The order was issued under Section 69(1) of the IT Act to the following agencies: the 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 (R&AW), Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only) and Commissioner of Police, Delhi.

According to the order, the subscriber or service provider or any person in charge of the computer resource will be bound to extend all facilities and technical assistance to the agencies and failing to do will invite seven-year imprisonment and fine.

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