SC Is­sues No­tice on PILs Chal­leng­ing Mail Snoop Rules

No­tices to Min­istry of Home Af­fairs; Cen­tre given six weeks to re­spond

The Economic Times - - Pure Politics - Sa­man­waya.Rau­tray @times­group.com

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.”

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