SC Issues Notice on PILs Challenging Mail Snoop Rules
Notices to Ministry of Home Affairs; Centre given six weeks to respond
New Delhi: The Supreme Court on Monday issued notices to the Ministry of Home Affairs on a December 20, 2018, government gazette notification authorising at least10 Intelligence and investigating agencies and the Delhi police to monitor, intercept and decrypt any information generated, transmitted, received or stored in any computer.
The notification, issued under Section 69 (1) of the Information Technology Act, 2000, read with rule 4 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, was challenged by PIL activist and lawyer Manoharlal Sharma and Trinamool MP Mohua Moitra, Shreya Singhal and Amit Sahni.
A bench, headed by CJI Ranjan Gogoi, issued notices to all of them on Monday and posted the case for hearing after the notices were served and responses were filed –– a process expected to be completed in six weeks. Sharma, in his petition argued that the new rules would allow the government to access any mobile or computer. These changes would also allow the government to seek de-encryption of encrypted messages if needed by ordering the intermediary to do so or run the risk of facing prosecution. Refusal to cooperate entails a seven-year jail term and a fine. Sharma said the proposed move was against the right to privacy of citizens which has since been held to be a fundamental right.
The Internet Freedom Foundation has also filed a separate petition through advocate Prateek Chaddha, challenging Section 69 of the Act, the IT Rules, 2009, and the notification of Dec 20, 2018. The rules and the Act both impact the right to privacy and fail the test of proportionality, the Foundation’s petition said.
Senior advocate KV Vishwanathan, who appeared for the Foundation, argued that the new notification does not allow for any judicial oversight over the process. This made it illegal.
He argued that some sort of judicial oversight was necessary and the process must be subject to judicial supervision. The rules have been challenged as sweeping. “… with little or no possibility of individuals detecting and complaining of legal injury, it is imperative for this court to test the constitutionality of the surveillance system” as “its very existence, in the absence of independent oversight, impacts fundamental rights of citizens.”