The Union home ministry order last week that authorised ten intelligence, tax and law enforcement agencies to “intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer” has kicked off a political storm. The order, which particularly relates to electronic surveillance, gives sweeping powers to the IB, Narcotics Control Bureau, ED, Central Board of Direct Taxes, Directorate of Revenue Intelligence, CBI, NIA, Cabinet Secretariat (R&AW), Directorate of Signal Intelligence and Commissioner of Police, Delhi. The government has defended its move by saying that the notification was issued under rules framed by the previous UPA government. There is some justification to this argument, but it is not an entirely convincing explanation.

Government has clarified that existing processes will be followed and every case of interception would continue to require permission from the home secretary and review by a panel headed by the cabinet secretary. However, even these processes do not have adequate safeguards against misuse. For example, in emergent situations a designated agency can approach a service provider and seek immediate access to electronic information. It would only need to notify the home secretary in three days. In case there is no post-facto approval in seven days, the interception will have to stop. In other words, agencies effectively have a blanket licence to snoop for a period of about ten days.

This needs to be tested against the recent nine-judge bench judgment of the Supreme Court, which ruled the right to privacy was integral to the fundamental right to life guaranteed by Article 21 of the Constitution. This judgment marks a big change in the legal framework from even the UPA-era surveillance rules formulated in 2009. Moreover, given today’s hyper-politicised atmosphere, if opposition parties fear that they will become the principal targets of surveillance by agencies to garner political intelligence for the government, they have reason to do so.

At the very least, circumstances permitting such surveillance must be very clearly and narrowly defined. Moreover, a measure of judicial oversight can be brought in as well. In the US, security agencies require a court order to read unopened emails. India should consider similar safeguards.