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In response to an RTI plea by activist Venkatesh Nayak, home ministry invokes three sections of the RTI Act to refuse the information.

New Delhi: The Ministry of Home Affairs (MHA) has categorically refused to disclose the reasons behind the Modi government’s controversial December 2018 order that authorised 10 security and intelligence agencies to intercept information from any computer resource under the Information Technology Act, 2000.

The home ministry’s response to an RTI filed by activist Venkatesh Nayak from the Commonwealth Human Rights Initiative said the “Sought documents/information is classified as ‘Top Secret’.”

The ministry invoked Sections 8(1)(a), 8(1)(g) and 8(1)(h) of the Right to Information Act, 2005 for its refusal to reveal the information — among others, these sections under the RTI Act exempt disclosure of information, which would “prejudicially affect the sovereignty and integrity of India”.


Also read: Modi govt ‘snoop’ order was UPA’s idea, and was backed by most parties


Asked and unanswered

In his RTI, Nayak asked for five points of clarification — the government’s reasons behind the “snooping” order, the correspondence to prove the same, why the ministry has refused to disclose facts related to the said authorisation and a list from the Central and state governments of all other security and intelligence organisations authorised for interception under the IT Act.

Four of these five questions went unanswered, while the only one addressed — regarding why the ministry has refused to disclose the written reasons behind the authorisation of any agency — was stepped around.

The MHA merely stated the wide ambit of justifications — “security of the State” and “integrity of India” — as the reasons behind allowing agencies to decrypt information.

The home ministry argued that they were at not at liberty to disclose this information, citing the given sections.

In its reply, the ministry also cited a September 2015 Central Information Commission (CIC) decision as precedent for using the three sections.

In 2015, after an unsatisfactory response to an RTI seeking information relating to tapping, interception or surveillance of telephone, Amitabh Narayan, an advocate, filed an appeal with the First Appellate Authority.

In response, the ministry’s Central Public Information Officer (CPIO) cited the Telegraph Act, 1885, and said that since phone tapping is done in the interest “sovereignty and integrity of India, the security of the State,” among others, sections 8(1)(a), 8(1)(g) and 8(1)(h) of the RTI Act could be cited to deny the information sought.


Also read: Supreme Court gives 6 weeks to Modi govt to reply on PIL against snooping notification


Why these sections don’t apply

Nayak, however, argued the sections are misconceived and do not apply to his particular set of questions.

According to Nayak, the 2015 order “does not apply to anything done or order issued under the IT Act,” because the December 2018 “snooping order” is not for telephone interception at all. Instead, it is for computer interception. The CIC’s 2015 order operates in a completely different field.

“The CPIO has mechanically washed his hands off the responsibility of being transparent about the routine actions of government,” Nayak said.

As far as sections 8(1)(g) and (h) go, Nayak reiterated that he had “not sought any information about any specific computer resource that was being intercepted by any of the 10 agencies listed in the December 2018 order”, so the CPIO’s action of invoking these sections “is also misconceived”.

Nayak also said that the MHA and CPIO have conveniently left out precedence which goes against their decision to refuse information.

He cited the 2011 Delhi high court order that restricted the United Progressive Alliance-II government from partially excluding the Central Bureau of Investigation (CBI) from the RTI Act.

This fact, Nayak said, could have been mentioned, but “the MHA’s CPIO has cherry-picked a questionable CIC decision to deny information about the December 2018 interception authorisation order”.

To reiterate the obligations of the CIC to its citizens, Nayak invoked the words of Union Minister Arun Jaitley, when he responded to criticism against the December order in Parliament by implying that the opposition leaders ought to have obtained complete information about the issue before raising it in the House.

According to Nayak, “The CPIO seems to be completely oblivious of the advice of the Leader of the House in the Rajya Sabha that anybody speaking about the interception order must so do after obtaining all facts.”

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