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The Central Government’s order allowing ten “Security and Intelligence Agencies” to intercept, monitor, and decrypt “any information generated, transmitted, received or stored in any computer”, issued on December 20 last year, has prompted a challenge to Section 69 of the Information Technology [IT] Act, 2000, under which the order was issued.
The Allahabad High Court on Friday issued notice in a PIL filed to this effect by an Aerospace Engineer pursuing law, Saurabh Pandey. The Bench of Chief Justice Govind Mathur and CD Singh directed the Central Government to file a counter-affidavit in the matter before it is taken up next in February.
The petition before the Court contends that the Centre’s December 20 order has traversed beyond the scope of Section 69 of the IT Act, which requires that the orders passed under it be reasoned orders. The petitioner argues that the Government seems to have acted in complete ignorance of this prescription by failing to provide any reasons for its order.
Further, the petitioner has also submitted that the controversial order was passed without putting any procedural safeguards, contrary to what is provided in Section 69 (2) of the IT Act.
“…by providing such a wide sweeping power without any safeguard [the state] cannot ensure the protection of rights guaranteed by the constitution and would result in impinging of fundamental rights with impunity..
… sub-section (2) of Section 69 of Information and Technology Act, 2000 which provides for safeguard for use of the power conferred by sub-section (1) of section 69 has been completely ignored by the executive and hence the action of the executives are arbitrary and irrational.“
Even otherwise, the petitioner has raised apprehension that Section 69 of the IT Act itself requires a relook, particularly given the reinforcement of privacy as a fundamental right in the Supreme Court’s Puttaswamy ruling.
It is the petitioner’s case that the sweeping power assumed by the Government through Section 69 puts unreasonable and unnecessary restrictions on the freedom of speech and expression as well as privacy rights. This provision deals with the government’s powers to issue directions for interception or monitoring or decryption of any information through any computer resource.
In view of the likely misuse of this provision, the petitioner contends,
“… Section 69 of Information and Technology Act, 2000 needs to be tested against the constitutional principles as prima-facie it seems to be in violation of Article 14 as being arbitrary for the reason being that it gives sweeping power to the executive and is irrational as there is no nexus as to justify having power of such wide magnitude which would result in impinging upon constitutional protected rights of person with impunity…
…[it] needs to be tested against the fundamental rights enshrined in Article 21 specially right to privacy.“
The petitioner goes on to argue that the government is effectively using Section 69 to bring about a surveillance State,
“…. what Section 69 of Information and Technology Act, 2000 purports to curtail the freedom of speech and expression as guaranteed by Article 19(1)(a) since the sweeping power given by section 69 of Information and Technology Act, 2000 makes the Union of India into a surveillance state which is diametrically opposite of a welfare state.“
In view of these concerns, the petitioner has prayed that the Constitutionality of Section 69 as it now stands, be examined by the Court. It is also prayed that the December 20 order be quashed for being unconstitutional.
The Court admitted the PIL after dismissing technical objections concerning its maintainability by the State. The case has been posted to be taken up next on February 1.
Read the petition: