India has a long history of clinging to antique and colonial laws and abstaining from enacting suitable and timely legislations. These absurdities are well beyond any reasonable governance norms ruling the masses of India. India is notoriously infamous for creating authorities and agencies without any legal sanction and framework. Surprisingly, a majority of them pertains to law enforcement and intelligence agencies like CBI, IB, RAW, etc. What India is actually doing is using administrative circulars and executive orders to give legitimacy to these institutions. India is deliberately avoiding the “Parliamentary Scrutiny” of these agencies. Why these circulars and orders have still not been declared 'unconstitutional' by Indian judiciary is still a bigger mystery?
In short, law enforcement and intelligence agencies are virtually governed by no law in India. The government of India (GOI) never took pain to provide a viable and constitutionally sound legal framework for these institutions in India. Legal framework is the backbone for any crucial function of the government. This is more so where the law enforcement and intelligence activities of the State are involved. Law enforcement and intelligence activities and functions touch the most basic aspects of a person’s life. That is why we have strong human rights and constitutional protections that safeguard the life and liberties of such persons.
It would be both ironical as well as violation of basic human rights and fundamental rights if the law enforcement and intelligence activities are conducted in an illegal, unreasonable and improper manner. The duties, functions, liabilities and rights of these law enforcement and intelligence agencies must be specified in an unambiguous and proper manner. There is no scope for any sort of ambiguity in these functions of the State.
For instance, the British Security Service is one of three intelligence services or “Agencies”. These include the Secret Intelligence Service (SIS), commonly known as MI6, the Governmental Communications Headquarters (GCHQ), and the Security Service (MI-5). While there are significant differences between the British and US legal structures for law enforcement and intelligence services, MI6 is most like the CIA, GCHQ resembles the NSA, and the Security Service most closely resembles the FBI. All of them are constituted under duly enacted legislative frameworks. Surprisingly, India has taken a very strange approach in this regard.
Invasion of Privacy of Indian citizens by Indian Government and its Agencies is certainly going to be there in future. This is more so when the Indian Government has openly declared its Policy to adopt endemic surveillance and e-surveillance over Indian citizens. The Indian Government would spend 800 Crores hard earned public money for tapping all phones in real time. Ironically, Indian citizens' money would be used against Indian only and that also in an illegal and unconstitutional manner. There is an emergent need to formulate a good and effective "ICT Legal Framework" for the protection of "Human Rights In Cyberspace". Further, India has finally decided to go ahead with the controversial security gadget, the full body scanner. The first such scanner will be installed at the Delhi airport within six months, officials said. This would also have serious privacy issues that are not governed by a dedicate privacy law in India. Even the Unique Identification Authority of India (UIDAI) is not a “legally constituted” authority. In the absence of just and reasonable law(s) to support the same, it would violate the Human Rights and Fundamental Rights of the citizens of India, say techno-legal experts like Praveen Dalal. The interaction of Information and Communication Technology (ICT) with Human Rights is no more a science fiction and India must keep in mind the mandates of Human Rights Protection in Cyberspace while implementing projects that have no legal sanction and backing.
Lawlessness and unreasonableness is guaranteed if there is no accountability. Accountability is absent when there is no legal framework for those managing essential governmental functions challenging the human rights and fundamental rights of the affected persons. Perry4Law has provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” to the Government of India. It seems the suggestions of Perry4Law have finally got attention of Indian government. Vice-President Hamid Ansari gave a definite thumb up to a system of oversight to govern the intelligence community in India. He said the current scheme where intelligence agencies are kept outside the ambit of parliamentary scrutiny is no longer tenable. The traditional practice of oversight by the concerned minister and prime minister and general accountability to Parliament is now considered amorphous and does not meet the requirements of good governance in an open society.
The final step is for the Parliament of India to take. Mere assurances and multiple intelligence agencies would not serve any purpose. Indian government has slept too much over these crucial requirements and the sooner it wakes up better it would be for India.