[This is a continuation of the earlier articles on the subject]
Section 69 along with 69A and 69B was introduced in ITA 2000 with the amendments passed in December 2008 by the then UPA Government. Though the passage was without any discussion, there was a standing committee which deliberated the amendment bill for over 2 years before the bill was introduced in its final form and passed.
Sections 69, 69A,and 69B along with 70B gave powers to different officials of the Government for the purpose of interception, blocking and collecting data from intermediaries and other IT users and to implement the Cyber Security.
These sections provided “Legal Empowerment” to enable discharge of the normal Governance functions which was necessary and also permitted under the Constitution.
The Politics behind the Criticism
Most people in the media are commenting on the MHA circular without reading the Section and the relevant regulation. They are politicians like Rahul Gandhi who deserve to be ignored or media anchors who are arrogant and think they know everything or professionals who are passionate about the concept of Privacy and distrust the Government.
It is disappointing that some of the well informed professionals in the security arena are also joining the bandwagon of critics and giving support to the false accusations of the Corrupt Congress politicians.
Their concerns may be genuine but in the present context, their stand is only helping the corrupt politicians and not the cause of either Privacy or Governance. I am therefore vocal about my views though some may think that it represents political support to the current regime.
These professional critics should realize that during the UPA regime there were not only thousands of snooping orders (as revealed by the RTI which is in the news) but there were many more without record.
Misuse of power is an issue that is to be handled separately and not mixed up with the current issue of whether the MHA order is an intention of the current Government to create a Police State, Create an Emergency situation etc as Rahul Gandhi, Owasi or Omar Abdulla or Gulam Nabhi Azad complain.
It is necessary that professionals who are trying to apolitical and avoiding recognition of the politics behind the current outrage realize that they are only deceiving themselves. My intention is to open the eyes of such professional critics so that they donot become pawns in the hands of the politicians to create a narrative which is false and malicious.
MHA Order does not give Snooping Powers to any agency
To start with let us recount that the current MHA order is within the powers conferred under section 69(1) of ITA 2000/8.
It is therefore incorrect and malicious to read this as if it is an order authorizing the 10 agencies to conduct a roving monitoring of the activities of the citizens as is being presented by the ill informed media and the opposition politicians.
The order only designates the agencies that may be called “authorized” to carry out the orders if any from the “Competent authority”.
This is actually restricting the powers of the Competent authority preventing it from using any agency other than these designated agencies.
These agencies cannot independently start any monitoring activity because they are not the “Competent Authority” and their powers are restricted to a “Specified Order”.
Competent authority can only issue such orders if
“it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence,”
subject to the provisions of sub-section (2),
for reasons to be recorded in writing,
by order,..”
Sub section (2) above refers to the Procedure and Safeguards which were later notified under the “Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 which was notified on 27th October 2009.
In order to understand the legislative intent of Section 69, it is necessary to also look at Sub section (3) and (4) of Section 69 which states as under.
(3) The subscriber or intermediary or any person in charge of the computer resource shall, when called upon by any agency which has been directed under sub section (1), extend all facilities and technical assistance to –
(a) provide access to or secure access to the computer resource,, generating, transmitting, receiving or storing such information; or
(b) intercept or monitor or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
(4)The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
The legislative intent of this section was to ensure that Intermediaries and persons in charge of the IT systems cooperate with the agency entrusted with the security obligations when called upon to do so.
The competent authority was obliged to use this provision only when there was a situation where the “Exceptions to the Privacy” was permitted under the Constitution and not otherwise. It was also obliged to have a written order for the purpose and use only designated agencies for the purpose.
It is therefore wrong to consider that this section is ultra vires the constitution whether before or after the Puttaswamy judgement.
Don’t Let the Supreme Court to be mislead again
I suppose that even the Government agencies need to realize the intent of the section and ensure that mischievous advocates donot mislead the Supreme Court with PIL s just as they did in the case of Section 66A of ITA 2000.
The Supreme Court is not infalliable and may be swayed by the popular public sentiment and can give wrong decisions in such cases.
This has to be prevented by the professionals who should be prepared to identify the nature of the section and the inbuilt safeguards in the section followed by the notification which we shall discuss in the follow up article.
Misuse of Law and Powers
Arguing that safeguards may be there in the law but it will not be followed is not an argument that can be countered. Yes every law can be misused. This is the element of distrust I mentioned earlier. We inherently distrust the Government and its officials who can be corrupted. But the solution is to make them honest and not distrust all of them for all the time.
I personally distrust the opposition politicians and officials under the UPA rgime hundred times more than the BJP under Mr Modi and officials in the Modi regime. I am therefore willing to place the trust in the current regime and consider that this MHA order was a routine order.
Why Now Argument
Opposition politicians seem to think that this Government should stop Governing and hand over the decision making to the opposition because they believe that they will win the next election.
Hence, every decision is linked to the forthcoming election and objected to.
I would like to say that the notification of 2009 had required these agencies to be notified even on October 27, 2009. It was better late than never. It was difficult to understand certain parts of the order such as “Nodal Officers” without the notification of these agencies for implementation. This uncertainty has been prevailing all along. In the absence of this notification, it was a fair interpretation that the competent authority under the law could designate any agency (public or private) and hence every IT company and Government department should designate a compliance officer or a nodal officer to carry out the directions.
The MHA order serves the purpose of providing a clarity that only these agencies need to be involved in the implementation of Section 69.
I donot know how this sudden realization came upon the MHA. Only insiders can explain how this idea originated.
But I would like to believe that after the recent Supreme Court judgement, there could have been a discussion on what is the “Procedure for Interception” which does not violate the Puttaswamy judgement and the concerns of the Privacy activists. At that time, the department has realized that the procedure is defined under the rules under Section 69 but there is a lacuna that specific agencies have not been formally notified.
Hence MHA could have tried to regularize the lacuna and come up with the clarificatory notification restricting the powers of the competent authority only to these 10 agencies.
Naavi
The Second Awakening… What is there in Rules of Oct 27, 2009 on Section 69?
The Second Awakening… What is Section 69?
Snooping and Section 69 of ITA 2000: Beyond Politics, Distrust and Passion..The second awakening
Agencies empowered under Sec 69. No Need to raise a false alarm
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