April 2013 is the month in which Indian government wishes to implement the controversial and ambitious central monitoring system (CMS) project of India. The year 2013 is also the year where the intelligence infrastructure of India may also see a boost.

Till now the national counter terrorism centre (NCTC) of India has failed to take off the ground. Similarly, the national intelligence grid (Natgrid) project of India, crime and criminal tracking network and system (CCTNS), etc are also facing a similar fate.

On the front of cyber security infrastructure of India as well, there is little progress. We have no cyber security best practices in India and law enforcement and intelligence agencies are actually working in an improper manner while dealing with sensitive information.

Crucial projects and authorities like national cyber coordination centre (NCCC) of India, national critical information infrastructure protection centre (NCIIPC) of India, telecom security directorate of India, etc are still in pipeline.

Even on the legislation front, India is deliberately postponing enactment of relevant and crucial techno legal laws. For instance, the cell site data location laws in India and privacy issues must be suitably regulated by a new law. Similarly, the cell site location based e-surveillance in India and surveillance of internet traffic in India must also be part and parcel of a new legislation.

Parliamentary oversight of intelligence agencies of India is need of the hour as intelligence work is not an excuse for non accountability. Unfortunately, the intelligence infrastructure of India has become synonymous for non accountability and lack of oversight.

Recently the Aadhaar project of India was challenged in various courts around the nation. There are serious techno legal security issues with projects like Aadhar and they must be resolved as soon as possible. Further, projects like Aadhaar, CCTNS, Natgrid, CMS, etc must also be backed by proper legislation and parliamentary oversight.

The government has to maintain a balance between civil liberties like right to privacy and law enforcement requirements. If a provision mandating compulsory cell phone location tracking for all the phones and others is formulated, it would fell afoul of the constitutional and statutory protections in India.

As on date, phone tapping can be done only through the procedure prescribe under the Indian Telegraph Act, 1885. All passive phone tapings that are not authorised under the Telegraph Act are illegal and punishable. It is immaterial whether a law enforcement agency or private person is indulging in such activity as it would remain illegal and punishable for both in such circumstances.

The real problem is that the law enforcement and intelligence agencies of India are not subject to any practical and effective parliamentary oversight. Indian government must not only make them accountable to the parliament but also formulate new laws keeping in mind the contemporary requirements. The Telegraph Act has long served its purpose and it deserves a complete rejuvenation.

We must also not forget that we have no dedicated privacy laws, data protection laws, data security laws and cyber security laws in India. In these circumstances implementing the central monitoring system project of India would raise serious constitutional challenges and Indian government must avoid the same at all costs.

Source: PTLB Blog.