CPIL & ANR vs. Union Of India and Others - Delhi High Court

The case

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, India (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:

1. The surveillance projects violate the right to privacy of citizens under Article 21 of the Constitution of India.
2. 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.
3. 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”).
4. The projects lack an oversight mechanism and stand in violation of the principles laid down in the Puttaswamy judgment.
5. 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:

1. 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.
2. The three surveillance projects namely CMS, NATGRID and NETRA.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. This is a very serious matter where the surveillance state is attempting to view everything that is happening over the internet.
9. 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.

Legal Team

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).

SFLC.IN's Statement

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

Updates From Court Hearings

Hearing on 09.07.2021 - The case was last listed on 09.07.2021 but it was not taken up by the Hon'ble bench. The next date of hearing in the matter is 28.08.2021.

Hearing on 05.02.2021 -  Senior Advocate Mr. Prashant Bhushan appeared on behalf of Petitioner No. 1 and 2. He informed the bench that the Government had filed an affidavit which was the same affidavit that had been filed earlier, and was subsequently withdrawn. He further submitted that the clarifications and responses given by the government in the said Affidavit were inadequate and insufficient. Mr. Bhushan requested for more time to file a rejoinder along with some additional documents, which was granted by the Hon'ble Bench.

Hearing on 31.08.2021 - The case was listed before the bench comprising of the Hon'ble Chief Justice and Hon'ble Ms. Justice Jyoti Singh. Petitioner No. 1 and 2 were represented by Senior Advocate Mr. Prashant Bhushan, who was assisted by Kushagra Sinha, a lawyer from SFLC.in.

Mr. Bhushan began his submissions by explaining and highlighting the problems with the three generalized systems of surveillance namely CMS (Centralized Monitoring System), NETRA (Network Traffic Analysis) and NATGRID (National Intelligence Grid).

He said that Petitioner No. 2 had filed a Petition before the Hon'ble Supreme Court on the Pegasus issue but the issues raised in that Petition were separate (details about SFLC.in's Petition on the Pegasus issue can be found here).

He further said that the government in this case had initially filed an affidavit and had then withdrawn it, only to re-file another affidavit containing similar content. He also said that the affidavit filed by the Government did not adequately address the averments which were made in the Petition.

He submitted further that a committee should be appointed by this Hon'ble Court which could be headed by a retired Judge of this Hon'ble Court or a retired judge of the Hon'ble Supreme Court, to look into the surveillance projects.

On the issue of problems with the current system of issuance of interception Orders, Mr. Bhushan read the following passage from the Report by the Committee of Experts under the Chairmanship of Justice B.N. Srikrishna:

"For  each  of  these mechanisms,  oversight  is  carried  out  through  a  Review  Committee set  up  under  the  Telegraph  Rules.379  This  Committee  reviews interception  orders  passed  under  the  Telegraph  Act  380  and Section  69B  of  the  IT  Act.  It  consists  of  the  Cabinet Secretary,  Secretary  to  the  Government  of  India  in  charge  of Legal  Affairs  and  the  Secretary  to  the  Government  of  India  in charge  of  Department  of  Telecommunications.  As  per  a  recent RTI  application  to  the  Ministry  of  Home  Affairs,  it  has  been found  that  about  7500-9000  such  orders are passed by the Central Government every month.381 The Review Committee has an  unrealistic task  of  reviewing  15000-18000  interception  orders  in  every meeting, while  meeting once in two months."

Solicitor General Mr. Tushar Mehta appeared on behalf of the Respondents. He said that the government will file an Affidavit and it will respond to whatever (averments) it finds to be relevant.

The next date of hearing is 30.09.2021.

Documents

Please find below the following documents:

1. A scanned copy of the Writ Petition

2. Copy of the Order dated 02.12.2020, passed by the Hon'ble Delhi High Court.

3. Copy of the Order dated 31.08.2021