Monday, January 2, 2012

Abuse Of State Secrecy And National Security: Obstacles To Parliamentary And Judicial Scrutiny Of Human Rights Violations

The Council of Europe has issued many important and far reaching resolutions and notifications in the year 2011. One such important resolution is titled as abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations. This is in addition to the concerns shown by the European Council regarding cyber attacks and political pressures upon cyber dissidents. It seems European Council is stressing upon protecting human rights in cyberspace and civil liberties protection in cyberspace.

This also shows that the international community is getting serious about protection of civil liberties in cyberspace. For instance, the connection between United Nations and human rights in cyberspace is also well known where UN declared that access to Internet is a basic human right. However, the efforts of United Nations regarding cyber laws and human rights in cyberspace need to be further expedited as they are slow in nature.

As far as India is concerned the situation is really alarming. Law enforcement and intelligence agencies of India are practically working with no legal framework. Parliamentary scrutiny of law enforcement and intelligence agencies of India is still missing. Although draft bills for central bureau of investigation (CBI) and intelligence agencies of India were made, they were never considered by Indian parliament. Till now agencies like CBI, research and analysis wing (RAW), etc are working with no constitutionally sound law governing their operations.

Further, numerous e-surveillance oriented projects like Aadhar, national intelligence grid (Natgrid), central monitoring system (CMS), national counter terrorism centre (NCTC), crime and criminals tracking and networks system (CCTNS), etc have been launched without any legal framework and parliamentary scrutiny. Phone tapping in India is also not done in a constitutional manner. E-surveillance in India and Internet censorship in India has also increased a lot. Clearly, parliament has failed to address abuses of state secrecy and national security powers in India.

Even judicial scrutiny of e-surveillance and Internet censorship issues in India is not up to the mark. Fortunately, the Supreme Court of India is dealing with privacy violations through illegal phone tapping in India. While doing so the Supreme Court has observed that with the present state of technology used in India by law enforcement agencies and private individuals, privacy rights of Indians are at grave risk. The Supreme Court also recommended reformation of official secrets act of India keeping in mind the contemporary requirements and environment. This is a good sign but the Supreme Court of India must expedite these matters as they have been pending for long.

Parliamentary oversight and judicial scrutiny are the twin safeguards that can prevent excessive abuse of state secrecy and national security powers in India. Unfortunately, presently both of them are missing and this has resulted in an intelligence mess in India. Further, India is desperate to control technology rather utilising it.

We need dedicated and separate privacy laws, data privacy laws and data protection laws in India to tackle state abuse of its sovereign powers. The sooner these procedural and constitutional safeguards are adopted in India the better it would be for the larger interest of India.