The Delhi High Court directs the CIC to provide a time frame within which our second appeal for information on surveillance orders will be decided

tl;dr

We have been pursuing information relating to the scope and scale of e-surveillance conducted by the Ministry of Home Affairs since December 2018. The Ministry of Home Affairs (‘MHA’) had originally claimed that the information is exempt for national security, but the Central Information Commissioner (‘CIC’) said that this doesn’t apply - and directed the MHA to hear the matter again. When the MHA heard the matter again, it now claimed that it cannot provide the information anyway, because it has destroyed it! We filed another appeal before the CIC, and also filed a writ petition in the Delhi High Court to protect against further destruction of data in the meanwhile, and highlighting the immense delays faced in the CIC. The Delhi High Court has now directed the CIC to tell the High Court a timeline within which our appeal will be decided.

Background

In order to create a meaningful space for discussion on electronic surveillance, we filed six RTI applications on 28.12.2018 seeking information from the MHA on the total number of orders passed for the interception, monitoring, or decryption of electronic information (collectively “Electronic Surveillance’) under the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (“2009 Interception Rules”) read with Section 69 of the Information Technology Act, 2000 (‘IT Act’).

This request was rejected for reasons of national security by the CPIO, MHA, which was agreed to by the FAA in first appeal. But, on second appeal, which was heard for the first time after two years of filing, the CIC held that the information sought could not be rejected on grounds of national security and sent the matter back to the FAA for re-examination (‘CIC Remand Order’). Such an observation was made because we did not ask for details of any specific interception order or a particular individual, and our request was limited to anonymous and consolidated figures of number of orders passed for Electronic Surveillance.

When the issues were re-examined by the FAA, the CPIO, MHA brought in a new claim, that the information sought was no longer available since records were destroyed every six months, and this was accepted without question by the FAA in its revised order (‘FAA Order’)!

We filed a second appeal (for the second time) in August 2021, against this order before the CIC in August 2021, along with two applications for urgent listing of the appeal, but did not receive any response from the CIC.

But it takes two years to be heard before the CIC!

Due to a heavy caseload and pending vacancies, the CIC is unable to list matters any time before 2 years of when they are filed. In fact, the first time we filed a second appeal in this particular was in May 2019, and the appeal was only heard in May 2021 - almost exactly two years. In the meanwhile, the MHA may well claim that even more records have been destroyed during this interim period.

This will basically render the RTI applications infructuous. For this reason, we filed a writ petition before the Delhi High Court seeking the requested information, the timely disposal of our second appeal (filed for the second time) and preservation of records during the pendency of the RTI proceedings.

We have written more about the petition here. The matter was listed today at item no. 9 before Justice Yashwant Varma.

Delhi High Court directs CIC to provide a timeline

Sr. Advocate Trideep Pais appeared on our behalf and submitted that the information sought from the MHA actually does exist with the MHA, and prayed that it be protected from destruction during the pendency of these proceedings. Mr. Pais also raised the issue of the delays in the CIC.

Justice Yashwant Varma, after hearing both sides, directed the Counsel for the Respondent to take instructions from CIC (Respondent No. 4) regarding the time frame within which the pending second appeal would be decided. The matter is now posted for 02.12.2021.

We are grateful to Sr Adv Trideep Pais for leading the matter and appearing on our behalf. Mr Pais was assisted by our team of lawyers who drafted the writ petition, which includes Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Anandita Mishra, Krishnesh Bapat and Natasha Maheshwari.

We hope that the Court will consider the larger issue of destruction of relevant records during the pendency of RTI proceedings and the huge pendency of cases before the CIC (which is leading to cases being listed after 2 years) during the next date of hearing. We shall keep you updated about the matter!

This is an important matter because it deals with the scope and scale of surveillance activities conducted by the State. This affects not just our fundamental right to know, but also our right to privacy. We have pursued this information for 3 years before 4 different forums, and will continue to do so.

  1. Redacted version of the Writ Petition titled, “Apar Gupta v CPIO, MHA & Ors.” (link)
  2. Previous blogpost titled “IFF files a Writ Petition against MHA’s refusal to provide information on electronic surveillance orders issued under the IT Act” (link)
  3. Previous blogpost titled ““Information sought is not available”: MHA claims to have destroyed all records when asked total number of Surveillance orders” (link)
  4. Previous blogpost titled “IFF keeps pushing against secrecy in surveillance. CIC orders MHA to adjudicate on our request for transparency” (link)
  5. Previous blogpost “We won’t give up! IFF approaches CIC against MHA’s refusal to disclose surveillance figures.” dated 14th May, 2019 (link)
  6. Previous blogpost titled “TOP SECRET: MHA Refuses to reveal total number of snooping requests” (link)