Tuesday, December 20, 2011

Intelligence Gathering In India Is Unconstitutional

Intelligence gathering and fighting terrorism are essential national security and sovereign functions. They cannot be equated at par with other governmental functions. That is the reason why every country provides some extra protection and immunity from public scrutiny to such functions.

None can doubt that Indian counter terrorism capabilities need rejuvenation. We have an obvious but unresolvable terrorism dilemma in India. With the growing use of social media by cyber criminals and terrorists, the intelligence agencies world over are engaging in open source intelligence through these social media and platforms.

However, the real problem is that in India intelligence agencies and law enforcement agencies are practically governed by no law. Whether it is Central Bureau of Investigation (CBI) or Intelligence Agencies of India, none of them are presently “accountable” to Parliament of India.

Even the constitutional validity of national investigation agency act, 2008 is still doubtful. Further, India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well.

E-surveillance in India, websites blocking in India, Internet censorship in India, etc are also not done a strictly constitutional manner. Till now Indian courts have not tested the acts of intelligence agencies of India on the touchstone of constitutional protections. There is no e-surveillance policy in India and protection of human rights in Indian cyberspace has still not been considered by Indian government.

In fact, intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of Intelligence Agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations.

A private Bill titled Intelligence Services (Powers and Regulation) Bill, 2011 was circulated in the last session of the Parliament. However, instead of discussing the same in the current Monsoon Session (August 2011) and winter session (December 2011) of the Parliament, Indian Prime Minister Dr. Manmohan Singh has announced that Law on Intelligence Agencies would be formulated soon.

The national intelligence grid (Natgrid) project of India is also without any constitutional safeguards. The Cabinet Committee on Security (CCS) has also given only “Partial In Principle Approval” to NATGRID Project. Since NATGRID Project is not supported by any Legal Framework and Parliamentary Oversight, the “Crucial Stages” of NATGRID Project has not yet been approved by the CCS. Thus, NATGRID Project of India is still in troubled waters as lack of Privacy Laws and Data Protection Laws has put it in doldrums.

On top of it we have the proposed central monitoring system (CMS) project of India that has been proposed without any parliamentary oversight. Further, stress upon Internet kill switch is also given by India without realising that Internet kill switch is not a solution to cyber threats. Anti Internet kill switch measures are needed to prevent Indian government from taking recourse of any such unconstitutional and draconian action.

Finally, intelligence gathering skills developments in India are far from satisfactory. Intelligence agencies of India are insisting upon use of 40 bits encryption level in India. This has been suggested so that surveillance of Internet traffic in India is possible. However, e-surveillance is not a substitute for cyber skills. Encryption policy of India is urgently needed to resolve all these issues.

Presently, Indian government and intelligence agencies of India are engaging in many unconstitutional activities that are not subject to any parliamentary or judicial scrutiny. It is high time to bring some order in the chaos created by this situation unless it is too late.