CPIL & ANR vs. Union Of India and Others - Delhi High Court
Writ Petition (Civil) No. 8998 of 2020 (P.I.L) was filed before Delhi High Court which came up for hearing on 02.12.2020, before the Division Bench-I comprising of Hon'ble Mr. Justice D. N. Patel, Chief Justice and Hon'ble Mr. Justice Prateek Jalan.
The Center for Public Interest Litigation (Petitioner No. 1) and Software Freedom Law Center, Delhi (Petitioner No. 2) have approached the Hon'ble Delhi High Court, challenging the operation and execution of three surveillance projects namely CMS, NETRA and NATGRID, which collectively and separately seek to spy on the communication of citizens in India. The aforementioned projects allow the government agencies to intercept and monitor all and any telecom and internet communications in bulk, furthering the process of construction of a mass illegal dragnet surveillance system by the state.
The Writ Petition challenges the operation and execution of the surveillance projects on the following grounds:
- The surveillance projects violate the right to privacy of citizens under Article 21 of the Constitution of India.
- Aggregation of metadata of an individual's transactions such as financial information and travel information can lead to profiling of the population. Such methods of data collection have a chilling effect on right to free speech, restricting the fundamental right to speech and expression under Article 19(1)(a) of the Constitution of India.
- Surveillance projects are in violation of India's obligations under the International Covenant on Civil and Political Rights (“ICCPR”) and the Universal Declaration of Human Rights (“UDHR”).
- The projects lack an oversight mechanism and stand in violation of the principles laid down in the Puttaswamy judgment.
- Lack of a parliamentary or judicial oversight mechanism over interception and monitoring of communications.
Arguments in Court
Senior Advocate Mr. Prashant Bhushan appeared for the Petitioners. The following points were argued before the Hon'ble Court:
- The Petitioners have approached this Hon'ble Court with an exceedingly important Petition which seeks to challenge a 360 degree surveillance mechanism being put in place by the government. Under the said surveillance projects, the internet traffic of every citizen would be subjected to interception and surveillance by the government.
- The three surveillance projects namely CMS, NATGRID and NETRA.
- CMS or the Centralized Monitoring System which is similar to the PRISM project which had been exposed by Edward Snowden, in its attempts to enable the tracking and monitoring of all internet traffic in the country.
- NATGRID has been built with an intent to enable the government agencies to get information from the banks such as bank account details, transaction details, in violation of the principles which were laid down in the Puttaswamy judgment. The government is not entitled to know information in respect of my travel plans, my bank account transactions unless there is a specified need to do so.
- An invasion into a citizens privacy, into his/her internet communications can only be done if there is a law that authorizes the government to do so. All such attempts which infringe the right to privacy of the citizens have to pass the test of proportionality which was laid down in the Puttaswamy judgment.
- As laid down in the Puttaswamy judgment, the government must also put in place the "least intrusive method" which is not being done in these projects.
- The PUCL judgment authorizes interception of communication as per a procedure which consists of an oversight mechanism in the form of a review committee. This review committee meets once in two months when it has the task of reviewing 15,000 to 18,000 requests for interception which shows that the requests are being allowed routinely without any application of mind.
- This is a very serious matter where the surveillance state is attempting to view everything that is happening over the internet.
- In the interim, the Petitioners are praying for production of records and documents pertaining to interception and monitoring activities by the government.
The Court issued notice to all the six respondents in the case which is returnable on 07.01.2021. The Respondents have been directed to file their response.
The Writ Petition was argued by Senior Advocate Mr. Prashant Bhushan who was assisted by Shyam Agarwal, Hemanth Pothula and lawyers from SFLC.IN - Prasanth Sugathan (Legal Director), Kushagra Sinha (Volunteer Legal Counsel) and Mishi Choudhary (Founder, SFLC.in).
This is a major boost in our fight against the creation and establishment of an Orwellian state by the government. The Court in its wisdom has aptly understood the significance of what we are trying to protect. Nobody fully knows or understands the complete extent or penetration of the surveillance projects which are being built and have possibly been operationalized by the government.
The Pegasus spyware snooping incident and the accompanying growth of surveillance infrastructure in India and around the world has solidified our concerns about the violation of the right to privacy of citizens. In light of the fact that the aforementioned projects are shrouded in secrecy, without an adequate and efficient judicial or parliamentary oversight mechanism, a lot of questions remain unaddressed. A challenge to the operation and execution of surveillance projects which has been admitted in the court therefore comes as a huge sigh of relief. SFLC.in shall continue its pursuit to defend the right to privacy of the citizens.
SFLC.IN's Litigation Tracker: SFLC.IN has a track record of fighting for the protection of digital rights of citizens. This also includes approaching the courts for redressal of grievances in respect of violation of digital rights. SFLC.IN has acted as a Petitioner and has provided pro bono legal assistance to the Petitioners in a number of such cases. Details in respect of all such cases can be found at the SFLC.in Litigation Tracker available at: https://sflc.in/litigation-tracker