Apar GuptaIt has been a little more than nine months since Ajmal Kasab was hanged at Yerwada Jail but his ghost lives on threatening individual privacy in India. Our government determined that the 2008 Mumbai Terror Attacks was a result of an intelligence failure and required better information gathering. One of the measures to improve information gathering was a proposed Cental Monitoring System or given the present penchant for acronyms, the CMS.
Beyond some press reports there was not much public information on the who, how and why’s of the CMS. One of the few official statements on the CMS was in response to a question in parliament in 2009. In a statement made by the then Minister of State for Communications and IT, Mr.Gurudas Kamat the reasons for implementing the CMS were outlined. He stated that it would further secrecy in the process of phone tapping, reduce manual intervention in the process and make the whole process speedy.
Recent press reports indicate that the CMS will go much further, allowing the government to directly plug into the lawful interception systems installed in the networks of every communications provider in India. This is incredibly problematic as by allowing the interception to occur directly, it will bypass the present system of safeguards to individual privacy. These privacy safeguards require the government to first issue a tap order following the guidelines issued by the Supreme Court of India contained under the Telegraph Act.Even though these guidelines have not been followed in the past they provide an indicia of privacy as a requesting intelligence agency has to request a high ranking bureaucrat to issue a tap order to a communications provider. Such an order has to contain reasons why such the communication is being intercepted. Even though this process is secretive as such orders are not made public at present the interception procedure is not automated. This prevents widespread phone tapping and even possible abuse which may be possible through the CMS.
Given the large scale creep into privacy it is disappointing to note the absence of any clear law establishing the CMS. This is consistent in the trend of the erosion of our constitutional scheme which requires prior legislative mandate for executive actions. Consider the constitution of the intelligence agencies which will utilise the CMS. These intelligence agenciesnamely, RAW(Research and Analysis Wing), the NTRO (National Technical Research Organisation) and the IB (Intelligence Bureau), exist without statutes which constitute, define or limit their powers. The only legislation which is applicable to the RAW and IB is the Intelligence Organisations (Restriction of Rights) Act, 1985. Curiously this statutes does not relate to the organisations themselves, but targets the fundamental rights of their officers to speech and forming associations.
The absence of law does not only afflict the CMS or the Intelligence Agencies, it cuts deeper. Even though the right to privacy is a constitutional right, at present there is no comprehensive legislation to enforce it. The only protections which exist are in the form of sectoral laws which further another interests rather than privacy. Often the rule in such laws is the breach of privacy with the exception being the safeguards to such a breach. In this respect the Report submitted by Justice A.P. Shah under a government constituted committee has still to see any progress in terms of a draft statute. Though certain press reports have emerged and even some drafts of the law have been leaked on the internet, a public consultation to draw in amulti-stakeholder dialogue is missing at present. All of this fits into the common theme of a lack of transparency and accountability where it seems an interest in secrecy is given primacy and an interest in privacy is not even factored.
Even though in most respects the 2008 Mumbai Attacks caused an immense loss of life, it also showed the strength of the Indian legal system. It showed, that the lone surviving terrorist which wounded a nation would not be subjected to mob justice but as guaranteed under the constitution will received a fair trial. Even if many may disagree with the result, they cannot fault the process. This is the lesson which should be taken away from the 2008 Mumbai Attacks when an effort is made to bolster national security disregarding any notion of individual privacy.
An expediency cannot wish away a constitution.