Interception Done By Authorized Law Enforcement Agencies After Due Approval, No Blanket Permission: Centre Tells Delhi High Court

The Centre has informed the Delhi High Court that lawful Interception or monitoring or decryption of any message or any information stored in any computer resource is done by authorized law enforcement agencies after due approval in each case by the competent authority, subject to safeguards as provided in law.

The development in a detailed counter affidavit filed by the Centre while opposing a PIL filed by Centre for Public Interest Litigation, alleging that through its 'general surveillance mechanisms' the Government is collecting substantial amount of information about citizens, which flows through the internet.

The affidavit, filed on behalf of Ministry of Communication, Ministry of Home Affairs and Ministry of Electronics and Information Technology, further avers that all the lawful interception orders are issued on the request received from authorized Law Enforcement Agencies and after satisfaction of the Union Home Secretary that grounds, as specified in law, are attracted.

"…the grave threats to the country from terrorism, radicalization, cross border terrorism, cyber crime, organized crime, drug cartels cannot be underestimated or ignored and a strong and robust mechanism for timely and speedy collection of actionable intelligence, including signal intelligence. is imperative to counter threats to national security. This is undeniably in legitimate State interest. It is, therefore, imperative that the requests for lawful interception or monitoring must be dealt with by the executive authority to maintain speed and promptitude in taking decisions," the affidavit reads.

Furthermore, the Centre has argued that there is no blanket permission to any agency for interception or monitoring or decryption and that permission from the competent authority is required. 

It has also been stated that sufficient mechanism of oversight has been placed under Rule 419A of the Indian Telegraph Rules and the IT (Procedure and Safeguards for Interception. Monitoring and Decryption of Information) Rules, 2009 as per the directions issued by the Supreme Court in PUCL v. Union of India [1997(1) 8CC 301].

"Lawful interception and monitoring is done in accordance with law. Further, Article 32 of the Constitution also provides for judicial review of executive actions/Therefore, the existing safeguards of oversight by the high level committee chaired by the Cabinet Secretary at the Central level and chaired by the Chief Secretary at the State level, are adequate and provide for effective supervision," the affidavit states.

Centre has further backed up various surveillance systems like Centralised Monitoring System (CMS), Network & Traffic Analysis (NETRA) and National Intelligence Grid (NATGRID) which allow the government to monitor communications of individuals through mobile phones, landlines, and the internet.

While CMS is similar to a system in the USA, NATGRID covers bank transactions, bank details, airline ticket bookings etc. Similarly, NETRA system scans information going through internet using keywords. The petitioner has claimed that usage of the said systems is an invasion of citizens' right to privacy under Article 21 of the Constitution, which was upheld by the Supreme Court in Justice KS Puttaswamy judgment.

Backing up the aforementioned systems, Centre has sought dismissal of the petition by arguing that the same was based on "factually and technically inaccurate knowledge gathered from unconfirmed sources".

Regarding CMS system, it has been argued that it allows fast and immediate electronic provisioning of targets for lawful interception without manual intervention of Telecom Service Providers (TSPs).

"The system is designed to have inbuilt checks and balances wherein Law Enforcement Agencies (LEAS) cannot provision the interception directly (Interception is provisioned after ensuring that there are proper approvals and authorisation by the competent authority) and the Telegraph Authority cannot see the content of intercepted communications," the affidavit reads.

It adds "A level of check is introduced at the level of the Telegraph Authority to verify that all the interceptions being carried out by the LEAS have the due approvals. It strengthens the checks and balances mechanism, while expediting the receipt of authorized intercepted information by the LEAS. The CMS system does not store/analyze the intercepted data."

Denying allegations in the plea that NATGRID project is involved in monitoring of communication or transactions of users of telecommunication system, Centre has submitted that the project does not result in real-time profiling of individuals, per se and that it only facilitates User Agencies to seek information on selective entities so as to identify suspects that pose potential threat to national and internal security.

Furthermore, the affidavit also states that interception or monitoring or decryption of any information from any computer resource is carried out only by the Law Enforcement Agencies in the interest of the sovereignty and integrity of India the security of the State, friendly relations with foreign States or public order or for preventing incitement to commission of an offence, duly authorised by the Central and the State Governments.

"Disclosure of such information will defeat the whole purpose of lawful interception which is done for the purpose of public safety and security of the State, etc. All such records are regularly destroyed as per Rule 419A of the Indian Telegraph Rules, which were framed as per the direction of the Hon'ble Supreme Court," it adds.

In August last year, Advocate Prashant Bhushan who appeared for the petitioner argued that the manner in which permissions for telephone interception are being given implies it is being done in a routine manner.

In this regard, he had referred to Justice Srikrishna Committee's report, highlighting that more than 7,500 phone tapping permissions are being given by the Union Home Secretary, every month.

He had urged the Court to set up an Independent Oversight Committee and further pass an interim direction to the Government to put on record whatever has been done in this regard till now.

The matter is slated to be heard next on September 15, 2022.

Case Title: CPIL v. UoI