tl;dr
Since December 2018, we have been seeking information on e-surveillance from the Ministry of Home Affairs (“MHA”). Initially, it was denied for national security reasons. We appealed before the First Appellate Authority (“FAA”); it was denied again on grounds that minimal data was maintained, and that records are periodically destroyed. When we further appealed before the Chief Information Commissioner (“CIC”), the CIC held that MHA does not maintain the information. We challenged the decision of the CIC in the Delhi High Court in 2022. Subsequently, on 21.03.2023 the court was pleased to issue notice. The case was scheduled for hearing on five occasions, but arguments were not heard on any of those dates. It was eventually heard on 13.01.2025, at which point we withdrew the case on the grounds that it had become infructuous due to the notification of the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024 (“Interception Rules 2024”).
Why should you care?
Section 69 of the Information Technology Act, 2000 (“IT Act, 2000”) allows the government to intercept, monitor, and decrypt any information generated, transmitted, received, or stored in any computer resource. This grants the Central Government the power to conduct an all-around e-surveillance on citizens, even decrypting encrypted data on their devices.
To facilitate an informed discussion on the legality and practices of e-surveillance in India, it is important to know the total number of surveillance orders issued by the Central government. On December 20, 2018, the Cyber and Information Security Division of the MHA issued an order which authorises ten security and intelligence agencies to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource. Following this, IFF filed six Right to Information (“RTI”) applications seeking statistical details about the number of interceptions received by the Central government, and subsequently denied and approved, information about review committee meetings held, and grounds for issuing these orders under Section 69 of the IT Act, 2000 but we are yet to receive this information.
Background
We have gone from pillar to post in order to get information on e-surveillance from the MHA. Here is the quick summary of the back-and-forth we have faced:
On 28.03.2022, we filed a writ petition challenging the CIC Order on four grounds. First, we argued that the MHA is the custodian of the information we sought. Second, MHA and its officers have taken inconsistent positions during different stages of the proceedings. Third, we argued that the MHA cannot destroy the information sought by us while the RTI proceedings are ongoing. And, fourth, similar information has been provided by the MHA previously in similar RTI requests.
The matter was listed for the first time on April 5, 2022 before Justice Yashwant Varma in the Delhi High Court. The Court directed the counsel for the respondents to seek instructions on specific paragraphs of the SOP that pertain to the maintenance of e-surveillance records. After which on 09.11.2022, the Respondents sought 3 weeks to file a response. On 20.03.2023, the respondents filed a counter affidavit reiterating their earlier stand.
The case was heard on 21.03.2023 before Justice Pratibha Singh, who was pleased to issue notice. The case was then listed for final arguments in September 2023. However, no arguments were taken up on 13.09.2023 and matter was listed for 16.10.2023. In the subsequent hearings, the arguments were not taken up for consideration due to paucity of time. The matter was finally listed on 13.01.2025 where we withdrew the matter on the grounds of it becoming infructuous due to the notification of the new Interception Rules in December 2024.
Our persistent efforts
In the course of these proceedings, the IFF played a crucial role in challenging e-surveillance which was authorised by the Central government. We have worked tirelessly to bring attention to this issue since 2018. Despite the lengthy delays and approaching various forums where information was not provided.
The MHA relied on Rule 23 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, and Rule 419A of the Telegraph Rules, 1951 to not provide us with the data and to state that it destroys all interception records every six months.
Due to the routine destruction of records (every six months) under the Telegraph Rules, 1951, the Central government did not maintain even anonymised statistical data on the issuance of interception orders. The inability to produce aggregated, anonymised interception records due to such provisions may have serious ramifications on the citizen’s right to privacy as reaffirmed under K.S Puttaswamy v. Union of India (2017) 10 SCC 1 as well as the right to receive information.
The recently notified Interception Rules, 2024 superseded Rules 419 and 419A of the Indian Telegraph Rules, 1951. However, the new Rules contain no provision for the disclosure of this information, resulting in a troubling lack of transparency and accountability surrounding interception orders. Additionally, the specifics for record destruction are still problematic. The Interception Rules empower the competent authority and “any authorised agency” to destroy the records as opposed to the Telegraph Rules, 1951 which only empowered the relevant competent authority and authorised Security and Law Enforcement Agencies to do so. By increasing the number of entities that can undertake the destruction of records, while not simultaneously introducing any meaningful safeguards or checks, the Interception Rules, 2024 create the risk of further reducing the accountability of the government towards its citizens and any transparency around its surveillance practices. Read more about the Interception Rules 2024 here.
Through this case, IFF tried to advocate for transparency by the government. We have been trying to obtain this information from the MHA since 2018 but the matter became infructuous due to the prolonged timeline and by the introduction of the Interception Rules in December 2024. Therefore, this case serves as a reminder that the fight against government e-surveillance is far from over.
We are immensely grateful to Senior Advocate Trideep Pais and our sincere thanks to Advocates Apar Gupta, Vrinda Bhandari, Abhinav Sekhri, Gautam Bhatia,Tanmay Singh, Krishnesh Bapat, Radhika Roy, Gayatri Malhotra, Naman Kumar, Rubayya Tasneem, Medha Garg, Shravani Nag Lanka and Injila Muslim Zaidi for their support.
Important Documents
Writ Petition in Apar Gupta v CPIO, MHA & Ors. (link)
Order of the Delhi High Court dated 13.01.2025 (link)