Business Standard: New
Delhi: Wednesday, August 07, 2013.
The
Department of Personnel and Training (DoPT) has proposed bringing intelligence
and law enforcement agencies under the ambit of the Privacy Bill, much against
their wishes. The Bill, if cleared, would make these agencies accountable in
case of unauthorised phone tapping and its subsequent leakage.
For instance,
government spies may face criminal charges or even jail terms, if there is a
repetition of an event similar to the broadcast of the infamous Niira Radia
tapes.
However, the
move has a flip side - the person offended has to establish himself of
impeccable repute and identity the culprit, before pressing criminal and
defamation charges. Given the clandestine world in which intelligence and law
enforcement agencies operate, it is nearly impossible to identify a rogue
sleuth or agency; so far, the government has failed to identify the source
behind the leakage of the Radia tapes.
Private
persons are barred from intercepting and recording telephone calls.
The DoPT,
which works under the Prime Minister's Office, has also sought to put an end to
the practice of intrusive surveillance or covert human intelligence by private
detective agencies and individuals. This means eavesdropping and capturing
someone on camera without his/her consent and knowledge would become a criminal
offence.
After due
deliberations with various stakeholders for about two years, the department has
submitted a revised draft to the Union law ministry. Though the move may bring
a sense of relief to the champions of privacy, it is likely to face severe
opposition from security agencies and private sleuths, who currently escape all
legal dragnets, as the Private Detective Agency (Regulation) Bill, 2007, is
pending in the Rajya Sabha.
Once the law
ministry is through with it, the Privacy Bill would be sent to the Union
cabinet.
"At this
stage, we are expecting bitter opposition from law enforcement agencies,"
a senior government official involved with the Bill said, adding,
"Everyone acknowledges the need for lawful interception. So, we have
allowed it in the Privacy Bill, subject to greater accountability."
The official
claimed the DoPT had tried to strike a fine balance between the needs of
security agencies and privacy concerns of citizens. Currently, the power to
legally intercept telephone calls, emails and messages vests under the various
provisions of the Telegraph and Wireless Act and the Information Technology
Act. The Union home secretary (in the case of central agencies) and state home
secretaries (for respective police forces) grants the permission to intercept.
What has led
to apprehension is the fact that once the privacy Bill is cleared, it is
expected to override the existing Acts. "Everyone is worried about the
legal complications arising out of it. There should be enough safeguards for
those authorised to collect intelligence," said D C Pathak, former
director of the Intelligence Bureau.
The agencies
had favoured continuing with the old system, riddled with loopholes, and had
suggested a waiver similar to the one on the Right to Information (RTI) Act,
arguing even the Constitution provided scope of lawful interception, for which
the Supreme Court had spelt out guidelines.
Intelligence
agencies such as the Intelligence Bureau, the Research and Analysis Wing, the
Central Bureau of Investigation, the National Investigation Agency, the
National Intelligence Grid and the National Technical Research Organisation are
exempted from sharing information under the RTI Act. These agencies fear under
the Privacy Act, they would become the targets of activists, as well as those
with ulterior motives.
Senior home
ministry officials believe once the Central Monitoring System (CMS) is
operational, chances of leakages would be close to nil. The new system is
expected to generate electronic records of each intercepted call, plug all
existing loopholes and reduce human interface drastically.
The senior
official quoted earlier said interception wasn't the bone of contention.
"There is still room to accommodate their concerns. The final decision
rests with the prime minister. The real problem is of surveillance."
The Bill
prohibits intrusive, direct or covert human intelligence surveillance. It means
an offence would be construed if a person, on residential premises or in
private vehicles, is put under surveillance through devices. Residential
premises could be flats, hotel bedrooms or suites. However, this wouldn't be
applicable to areas such as hotel lobbies, common stairways, dining rooms and
reception areas.
As intrusive
surveillance is carried out by both government and private agencies, the Bill
has a few grey areas, in terms of implementation. While the government is
forced to walk a tightrope on addressing the concerns of its agencies and, at
the same time, protecting an individual's privacy, the decision is likely to serve
a blow to private detective agencies.
"It will
adversely impact private detective agencies and society at large. With a ban on
covert intelligence, it will become difficult to carry out background checks of
potential employees and couples tying nuptials. On the other side, such work
will become more secretive," said Kunwar Vikram Singh, chairman of the All
India Private Detectives Association. About five thousand agencies operated in
the country, he said. "The annual business of these agencies could be
worth a couple of thousand crores, and these will suffer loses."
The DoPT
intends to solicit public comments before introducing the Bill in Parliament.
"The Bill still needed to be fine-tuned. We have already accepted most of
the recommendations of the A P Shah committee."
The panel,
which comprised members of the private industry, was set up in the wake of the
government's move to set up new agencies such as the National Intelligence
Grid, the Unique Identification Authority of India and the CMS. The committee
had suggested guidelines for collecting, processing and safeguarding data.
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