Secret Operating Procedure for digital snooping revealed. Confirms fears of centralisation of executive power, zero judicial scrutiny and oversight.

Following up on our challenge against the MHA notification which prays for safeagurds and oversights to India's digital surveillance regime a vital reply has been filed in this case. We have previously explained why the existing legal framework for surveillance needs urgent reform. This is further explained by Nitin Sethi's analysis in the Business Standard available here.

The Counter-Affidavit filed by the Ministry of Home Affairs has disclosed the Standard Operating Procedure followed by law enforcement agencies to snoop on citizens. The Standard Operating Procedure is more appropriately titled as the Secret Operating Procedure because it has been brought into the public domain for the first time. The disclosure of the Secret Operating Procedure is a major step in reforming India’s surveillance regime which is otherwise shrouded in secrecy.

A copy of the Counter-Affidavit and the Secret Operating Procedure has been made available by The Leaflet.

While we are reserving finer legal contentions for court the contents of the Counter-Affidavit and the Secret Operating Procedure confirm our worst fears. They confirm a centralization of power in the hands of an opaque and unaccountable Union Executive. There is little accountability and little or no penalties for a breach of this procedure. The hallmark of this entire process is secrecy.

What is also significant is that despite repeated requests, the Government has not disclosed the total number of interception orders passed in its Counter-Affidavit. Further, the Government’s reply confirms that there is complete lack of judicial oversight in the surveillance process which will greatly help reform the current system.

What happens next? The Supreme Court has given us 4 weeks to respond to the Government’s Counter-Affidavit, and you can read the Order passed on 8 March 2019 here.

Link to important posts and documents

  • Copy of the Counter-Affidavit filed by the MHA available on the Leaflet (link)
  • Our explainer on how the MHA notification could turn India into a surveillance state (link)
  • Our post on the MHA's refusal to respond to RTI queries about total number of interception requests (link)
  • Copy of Order dated 08.03.2019 passed by the Supreme Court granting us 4 weeks time to reply (link)