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More cry than hue against Home Ministry’s computer surveillance notification

The rule has been there for a long time, so those who are crying themselves hoarse are merely going for the hype.

Updated: Dec 27, 2018, 14:31 PM IST

I was on few debates on December 21 where a lot of cries were heard from the opposition, by media, and from by the human rights cabal and what not. Are the cries being heard all over commensurate with the right hues? I do not think so. It is a matter of fact that when some channel had indeed sought a phono, my first reaction was it is a welcome step. I do not hold any brief for the Government of India or any arm of the state. But the fact of the matter is that there is no need to alarmed about it. Let us see how?

MHA notification dated 20/12/2018
An extract of the notification is recalled below as the benefit of the readers.

Substantive rule already existed
It is evident from the above that 10 agencies have been enabled by virtue of the above notification to enforce the what is already provided for in the IT Act 2001 and attendant Rules notified (Rule 4 in the instant case). As a matter of legality, surely these rules have been placed in both houses of Parliament. In that event, it would have been examined by the Committee on Subordinate Legislation of both Houses of the Parliament in detail.

What is proposed to be done by this notification has had the approval of the government which framed the Rules. The present notification is only enabling who all will be authorised to carry out the task, meaning the institutional agencies which will enforce this. Hence, if concerns now being expressed now were not hitherto raised in the discussions in the Committee of Subordinate Legislation, it is inappropriate to raise it now.

Why institutional agencies were not enabled hitherto
Having stated the above technical point, with the regard to the human rights activists should cry hoarse on the issue let me make it very clear. The rule book has contained the provisions for the last so many years. It was in a nebulous form as no institutional agency had been enabled to invoke this rule, hence in a substantive sense consigning the Rule 4 of Information Technology (Proocedure and Safeguards for Inceterception, Monitoring and Decryption) Rules, 2009. Then why is it that they did not litigate in the matter challenging the Rules?

The reason is obvious. No institutional agency could ever invoke it and hence, in spite of Rule 4 being in the rule book, no one was hit by it. Therefore, no cause of action arose and therefore, no judicial ruling could be obtained. That reinforces my premise that while the 2009 Rules stipulated enabling provision of what can be done, they never did notify in sequel the institutional agencies which could do it.

Trigger to this enabler
We really required a Rona Wilson, whose computer on seizure led to material regard to conspiracy to assassinate the Prime Minister, which the local police during the course of investigation unearthed, that it appears the government was triggered into notifying some institutional agencies to give substantive effect to the Rules. The sequence of events betray the truth.

Elaborate rigours
The concerns of opponents of this notification is also highly hyped and unfounded. By virtue of this notification, it is not that your Station House Officer will enter your home, access your computer or laptop or whatsoever, and start raiding the files. It will not just whimsically enter the house of any Tom, Dick or Harry.

The agencies notified are manned by professionals. As the process of corroboration of other material evidence which comes to their possession in the investigation or intelligence gathering will be built, a dossier on the suspects will be constructed and with all the evidences in their possession and with the approval of the highest level, the competent authority, whether Union Home Secretary or such other authority, will be approached for approval.

The competent authority is not going to simply accord approval, but ensure that his secretariat also applies its mind meaning examining the material presented at several levels, and if required consult the Ministry of Law, before according the approval.

Judicial safeguards also exist
In addition, in case a purported victim still cries wolf, he or she has the recourse to judicial safeguards also provided under the Criminal Procedure Code (CrPC). In addition, in the event of the investigation ultimately leading to trial, safeguards against privileged communications also are laid down under the Indian Evidence Act, including several judicial pronouncements in case the material so obtained in held out as evidence by the prosecution.

Surely, more cries than hues being raised
It is not that the people crying hoarse are not aware of these safeguards. But it is a case hyping it. There for there are more cries than hues over this notification.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)