[E-Surveillance] Records Of Lawful Interception Highly Classified, No Statistical Data Maintained: MHA To Delhi High Court

The Union Ministry of Home Affairs has told the Delhi High Court that the records related to lawful interception and monitoring are categorized as highly classified documents and that minimal data is maintained for such highly classified information.

Centre said that the CIS division of Ministry of Home Affairs does not maintain any statistical data related to lawful interception and monitoring, as such records are not required for any functional purpose.

“Destruction of record s is a statutory requirement....all records pertaining to lawful interception are regularly destroyed every six months by the MHA, after the review of such directions by the Review Committee constituted under the Cabinet Secretary, and if not required for any functional requirement,” the Union Government added.

The submissions have been made in a counter affidavit filed by the Ministry on March 18 while opposing a plea seeking disclosure of statistical information pertaining to electronic surveillance.

The plea was moved by Apar Gupta, a lawyer and the Co-founder and Executive Director of the Internet Freedom Foundation (IFF), assailing an order dated January 28, 2022, passed by the Central Information Commission under Section 19 of Right to Information Act. 

It is Gupta’s case that there exists no transparency around the use of Electronic Surveillance. As per Gupta, the public authorities refuse to publish even aggregate statistical information to indicate the adequacy or functioning of the legal supervisory mechanisms of Electronic Surveillance under the 2009 Interception Rules.

Notice in the petition was issued in July last year. The case is scheduled to be heard today by Justice Subramonium Prasad.

Seeking dismissal of the petition, MHA said that lawful interception and monitoring is carried out by the authorised Law Enforcement Agencies with due permission of the competent authority, in the interest of sovereignty and integrity of the country, security of the state, public order or incitement of an offence, as per law.

“Therefore, it is unreasonable for the Petitioner to expect the record for a period of two years and thereafter, level allegation that the answering Respondent had been allowed for purported destruction of records and to belatedly change their stance to a new claim that data could not be disclosed since the records had been destroyed,” the government has said.

Furthermore, MHA has also submitted that monthly reports are submitted to the office of the competent authority by the authorised security and law enforcement agencies containing information of secret nature regarding the outcome of ongoing investigation and other operations, for which authorisation is sought under the law.

“It is further submitted that disclosure of such types of information is exempted under Section 8(1)(a)8(1)(g) and 8(1)(h) of the RTI Act. However, such records pertain to lawful interception and monitoring, which are destroyed every six months, as per Rules,” the affidavit states.

It adds, “It is further submitted that as per Section 8(1)(h) of the RTI Act, information which would impede the process of investigation, apprehension or prosecution of offenders is exempted from disclosure of information. It is further submitted that the information sought by the Petitioner is related to the statistical data, which are not maintained by the MHA.”

About the Petition

On 28 December, 2018, Gupta had filed six RTI applications seeking information on electronic surveillance from the Ministry of Home Affairs.

In his petition, Gupta stated that in 2019, the Central Public Information Officer (CPIO) had without application of mind, disposed of his requests for information. First appeals against the same were preferred before the First Appellate Authority (FAA).

As per Gupta, the same were also disposed of without providing any reasons. Thus, Second Appeals were preferred before the Central Information Commission (CIC) on the grounds that FAA's order suffered from non-application of mind, as exemptions under Sections 8(1)(a), 8(1)(g) and 8(1)(h) of the RTI Act were invoked without providing reasons. 

CASE TITLE: APAR GUPTA v. CENTRAL PUBLIC INFORMATION OFFICER, MINISTRY OF HOME AFFAIRS & ORS