TY - JOUR AU - Babele, Aryan AB - Abstract The onset of technological innovations such as Big Data and Analytics is changing the ways in which law enforcement agencies police and investigate crimes in India. Pervasive technologies like smartphones, closed-circuit cameras, etc, coupled with such innovations have augmented abilities of law enforcement to identify, monitor and predict suspicious individuals and activities. However, the expansive adoption of intrusive technologies for law enforcement challenge the statutory and the constitutional limits on mass surveillance. Also, the government has not been forthcoming in disclosing details about the extent and the ambition of such surveillance technologies. The secrecy has resulted in an informational asymmetry between the people and the government which raises profound concerns of mistrust, transparency and public-accountability. This article examines the feasibility of the ‘national security’ argument that law enforcement agencies normatively use to justify such secrecy of their surveillance powers. They argue that such disclosures may negatively affect their investigational strategies and render them susceptible to circumvention, such that it may be a risk to ‘national security’. The article analyses such ‘national security’ secrecy claims that currently exist without any proper surveillance law and external oversight. The article seeks to recommend meaningful approaches to limit the over-broad ‘national security’ secrecy claims and initiate an informed public conversation on expansive tech-enabled surveillance practices of the Indian government. INTRODUCTION Over the past half a decade, Indians have seen a remarkable advent of innovations in technologies that facilitate digital communications across the country. The smartphone penetration rate has radically increased, communication network has expanded, information sharing infrastructure has transformed, social media user base has widened, and most everyday home appliances have become dependent on digital data. These technologies are so pervasive that they produce enormous amount of data information relating to human users which is enough to assess their profile and behavioural characteristics. These advancements in technology and their broad application are exponentially increasing number of data points that can be used to identify, monitor and locate any individual in the entire communication network. The novel technologies are so powerful that all kinds of law enforcement agencies (hereinafter LEAs, including police, security and intelligence agencies) around the world find them as reliable emerging tools for predicting and investigating suspicious activities and threats to public safety. Stronger advancements are bringing parallel developments in the State’s capacity of predictive policing. The extensive deployment of technological innovations is increasingly creating opportunities for LEAs to monitor people in real time and indirectly impose mass surveillance. There are several examples to illustrate the extent and ambition of such technological advancements. Facial recognition technology (FRT), which facilitates the mapping of the database of facial features captured by an usual CCTV, body-worn camera, or any other video source, allows the LEAs to identify and track individuals in the digital space1; advanced surveillance software programs which work over the cellular interception devices to allow agencies to surreptitiously monitor and search cell phones or computer networks of individuals2; and the novel technological processes of machine learning and data analytics that assist in predicting crime patterns, or threats from habitual offenders.3 These advanced surveillance capabilities permit LEAs to reconstruct the individual’s comings and goings and readily search records of their communications anytime, dating back to several months or years.4 Cautiously, in India, these technologies are largely used in secret by LEAs, with no framework to provide a collective knowledge of its application on masses and, adding to the woes, there are no specific laws under which the misuse of such novel technology can be checked and challenged. Clearly, the rise in State’s surveillance activities raise profound questions of privacy rights and civil-liberties with respect to deployment and control of such novel technologies. Furthermore, there are troubling concerns of transparency and accountability associated with the expansive usage of such technologies by LEAs.5 Normatively, authoritarian and communist regimes like China deploy dragnet surveillance.6 By contrast India, the largest democracy, has underlying image of a surveillance free state. However, multiple reports of Indian government’s engagement in secret surveillance strategies debunk that image.7 India is expanding its surveillance capabilities largely in secret as ‘counter-terrorism’ efforts since the 26/11 Mumbai Terrorist Attacks. Therein, the ‘national security’ argument has become a principal pretext for LEAs in India to inherently associate secrecy with their surveillance methods. As the argument goes, without secrecy, criminals will decipher LEAs’ investigational techniques and devise its circumvention, and as a result the criminals may evade the law and escape investigation, the price of which ultimately be the possible risks to ‘national security’. The balance of informational power between the public and government leans more and more on the side of government, as public remains in the dark due to such secrecy and the government keeps expanding its surveillance capabilities.8 The concerns of illegal mass surveillance seem inevitable in such secret world; however, still the ‘national security’ argument has not sustained any proper scrutiny neither from the scholars nor from the judiciary. This article aims to examine, in depth, the substantiality of the ‘national security’ secrecy claims of LEAs. The article is divided into five parts. Part I vivifies the ‘national security’ argument in action by illustrating how the government uses this argument to keep its novel surveillance technologies in secret. Part II contends that even if ‘national security’ argument is assumed as valid for a moment, the countervailing principles of transparency and accountability should be preferred over secrecy in a democratic set-up like India. Part III assesses the edifice of the ‘national security’ argument, such that it probes into assumptions and claims on the basis of which the argument claims secrecy. Part IV examines the existing fragmented legal regime that implements the ‘national security’ argument in broader manner than is justified, and negatively affects the constitutional balance of informational power. Part V prescribes reforms that could tame the ‘national security’ argument and limit the secrecy claims to reasonable extent therein, and ensure the public debates on intrusive technological capabilities of LEAs. PART I — THE CASE OF LEAs’ ‘NATIONAL SECURITY’ SECRECY CLAIMS FOR THEIR TECH-ENABLED SURVEILLANCE CAPABILITIES Essentially, this part will demonstrate the dynamics of ‘national security’ secrecy which are typical to LEAs’ surveillance technologies. The first section of this part will briefly discuss the unfolding of case of illegal wiretapping of telephones in India and the Supreme Court’s weak response to the same, to illustrate how governments could misuse tech-enabled surveillance powers in clandestine manner. Subsequently, this part will describe the design and the nature of emerging technological innovations that enable LEAs to surveil en masse furtively insulated from accountability, and in defiance of existing fragile regulatory checks. The third section will illuminate how judiciary and legislature ignore the informational power of citizens and permit over-broad secrecy claims of LEAs under the spectre of ‘national security’ argument. The revelation of case of illegal surveillance by government in India In 1990, a controversy erupted when Chandra Shekhar (the Eighth Prime Minister of India) alleged that the then ruling government (led by V.P. Singh) was engaged in illegal wire-tapping of telephones of several politicians.9 This nation-wide scandal resulted in independent inquiry by the Central Bureau of Investigation (CBI) which revealed bulk of cases of misuse of surveillance power by the V.P. Singh led government which not only targeted the opposition leaders but also the ministers from its own cabinet. The entire incident raised several questions about the surveillance powers of the government, including the extent of abuse of technological surveillance capabilities and the procedural flaws present in the archaic surveillance laws.10 Afterwards, these questions reached the Supreme Court for adjudication in the case of People’s Union for Civil Liberties (PUCL) v. Union of India (hereinafter, ‘PUCL Case 1997’).11 The case primarily challenged the constitutionality of section 5(2) of the Indian Telegraph Act, 1885 (hereinafter, ‘Telegraph Act’), which provides the government with the power to order interception.12 The Court duly observed that the provision permits surveillance without adequate safeguards.13 Therefore, the Court laid down the detailed procedural safeguards (hereinafter, ‘PUCL guidelines’) to provide a check on arbitrary wire-tapping orders of surveillance.14 The safeguards were later statutorily incorporated in the Indian Telegraph Rules, 1951 (hereinafter, ‘Telegraph Rules’) by introducing Rule 419-A.15 The rules mandated that the interception is permitted only under two statutory preconditions — ‘occasion of public emergency’ or ‘existence of the interest of public safety’.16 The only external check that is there in the safeguards is the requirement of conveying interception orders to telecommunications service providers (hereinafter, ‘TSPs’) by LEAs such that TSPs will provide the requested data only upon the receipt of authorized interception orders.17 The application of PUCL guidelines was over-stretched to even govern the interception of digital communications on internet. The guidelines were adopted in near-identical manner under the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 (hereinafter ‘IT Monitoring Rules’) as made under the Information Technology Act, 2000 (hereinafter the ‘IT Act’). The critical difference is that the IT Act permitted surveillance on slightly broader grounds than Telegraph Act.18 This deliberate effort of the government expanded horizons of tech-enabled surveillance in the digital space for coming years. In the PUCL Case 1997, the Court attempted to limit the unauthorized over-reach of tech-enabled surveillance powers but it failed to observe the need of ‘future-proof’ safeguards and consider the pace of evolution of technology. Irrespective of the safeguards, the revelation of cases of unauthorized surveillance continued.19 The Court, interestingly, also denied imposing any meaningful judicial oversight.20 This left the authority vested in executive branch itself to permit warrantless surveillance on subjective statutory grounds of ‘national security’ and ‘investigation’ as mentioned in the IT Act and the Telegraph Act.21 Therefore, the Court also failed to mindfully examine the claimed nexus between ‘national security’ and secrecy claims of LEAs for their surveillance activities. The contemporary era of powerful and advanced surveillance technologies In India, more often than not, cases of unauthorized surveillance are not highlighted unless it is a political or scandalous issue, thereby the general public largely shrugs off the steady creep of the surveillance state.22 The present design and infrastructure of surveillance technology in India is far more powerful, centralized and invasive as compared to the targeted surveillance by cellular and telephone interception that PUCL case sought to remedy.23 The interpersonal communications are largely digital now providing bird’s-eye view to LEAs for online mass surveillance.24 Therefore, the application of antiquated PUCL guidelines on novel mode of communications is worrisome as it simply overlooks concerns of mounting mass surveillance. Some prominent powerful Indian tech-enabled surveillance infrastructures are: Central Monitoring System The Central Monitoring System (CMS) is a flagship infrastructure developed by the Centre for Development of Telematics (C-DoT) to facilitate centralized access for LEAs to all kinds of nation-wide electronic communications.25 The CMS envisions centralized governance for the collection of data from various Regional Monitoring Centres (RMCs) located in “the several licensed service areas of the Department of Telecommunications” across the country.26 The CMS is ‘central and direct’ meaning that the system is capable of eliminating the third-party service providers between the collected data and the recipient government entities. Otherwise, the TSPs act as an unofficial check on arbitrary interception requests.27 The CMS asks every TSP to integrate its installed ‘lawful interception and monitoring systems’ (LIMs) with ‘interception, store and forward’ (ISF) servers.28 These ISF servers send the real-time data to RMCs which are in turn directly connected to the CMS. This empowers LEAs to bypass the existing statutory requirement of requesting TSPs for providing the analogue and digital data of a target of interception and allows direct collection, storage and analysis of real-time communication data in absence of any check or oversight.29 As per reports, the CMS is using advanced algorithms across the network in order to intrusively gather and analyse the vast amount of data possible.30 These algorithms further assist in identifying patterns and profiling of information related to targeted and monitored individuals.31 The CMS provides LEAs with ‘on-demand’ monitoring and interception, purposively in order to “strengthen the security environment in the country”.32 Therefore, with the control at helm of the affairs arguably for ensuring ‘national security’, “every form of electronic communication” is under LEAs’ microscope.33 Network Traffic Analysis Various earlier reports confirm the existence of internet surveillance software — Network traffic analysis (NETRA), as developed by the Centre for Artificial Intelligence and Robotics (CAIR) of the Defence Research and Development Organization (‘DRDO’).34 The software analyses the flow of data consistently on internet and, segregates certain data based on pre-defined filters/keywords like ‘bomb’, ‘blast’, or ‘kill’.35 It constantly monitors the data available on social media platforms, blogs, emails, VoIP calls and instant messaging apps, to filter out the sources containing the wanted keywords. It is an estimate that the system is providing each permitted LEA with the huge processing and monitoring capacity of 300 TB of information per second.36 However, due to secrecy, there is sharply no information available about its progress since 2014. National Intelligence Grid National Intelligence Grid (NATGRID) is purposefully a counter-terrorism initiative to build a semi-functional integrated intelligence grid envisioned in the after-math of 26/11 Mumbai Terrorist Attacks.37 It envisages employing advanced technologies like Big Data and analytics. The project aims to link the databases of various government agencies in order to collect data, decipher trends and provide real-time analysis of data gathered across law enforcement, espionage and military agencies”.38 The government planned to provide 11 LEAs with the access to the linked network of “21 sets of databases” consisting of different kinds of personal data of citizens “to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies”.39 There has been no information about NATGRID for long time until recently when current Home Minister Amit Shah confirmed that NATGRID will be implemented by the end of 2020.40 In addition to the technological infrastructures dedicated for surveillance, Indian government also procures specific novel technologies to facilitate surveillance for independent LEAs such as state police agencies. These are computer hacking tools, automated license plate readers (ALPRs), drones, and FRT, inter alia. The author will deal with Automated Facial Recognition Technology (AFRT) only considering the recent attention and furore it has attracted during anti-CAA protests which exemplifies the threats that tech-enabled surveillance poses to civil rights and liberties. Automated Facial Recognition Technology FRT is a set of technological capabilities that assist in collecting, processing, and analyzing “biometric” data related to “facial patterns, characteristics and features” in order to identify and verify any individual among the public.41 AFRT significantly augments the existing surveillance capabilities of LEAs. Firstly, it gets integrated with the State’s deployed network of CCTV surveillance system or drone cameras. This improves the analysis of CCTV footages from “labor-intensive and manual process to the one that is conducive for effortless and ubiquitous monitoring”.42 Secondly, the technology is surreptitiously invasive than existing biometric algorithms like fingerprint and iris scan.43 While biometrics like fingerprinting cannot be done from distance and without consent, AFRT assists in monitoring large spaces and collecting biometric data without any consent prerequisite.44 This capability of analysing facial patterns in spatial setting tends it to make a tool for mass surveillance. AFRT is capable to compare the recorded patterns with the images available to LEAs in existing citizens’ databases.45 Therefore, AFRT not only collects biometric data secretively but also helps in identifying targeted individuals and predictive policing for convenience of LEAs.46 There is a growing trend of adoption of FRT by governments around the world for law enforcement and surveillance purposes.47 In context of India itself, local LEAs have started integrating their image capturing systems with AFRT.48 Recently, Delhi and UP police have been criticized for using covert FRT system to surveil, identify and arrest anti-CAA protestors.49 Amid such developments, National Crime Records Bureau (NCRB) issued tender inviting bids for setting up a nationwide National Automated Face Recognition System (NAFRS).50 The tender provides that the NAFRS is supposed to implement a system of constant monitoring of “digital images, photos, digital sketches, video frames and video sources” for the identification and verification of persons.51 It also opens up the possibility of China-like centralized monitoring centre which will envision linking of each and every database of video sources as available in the country to facilitate real-time surveillance. All these examples evidently illustrate that Indian government is engaged in broad level ‘snooping’. While these developments bolster possibilities of mass surveillance, the institutional and legal safeguards to control the contemporary surveillance technologies have not kept pace.52 It is worrisome that government is still relying on antiquated surveillance laws which are based on foundation of PUCL guidelines that even failed to exert adequate scrutiny upon much lesser intrusive cellular-interception technology.53 Furthermore, the trend of adoption of intrusive technologies by local police agencies for use in criminal investigations is more concerning.54 As the accuracy of the novel technologies like FRT is currently dubious, and raises possibilities of false identification of an individual as criminal, there are risks of causing unwarranted exclusion and proceeding against innocents.55 Therefore, it is frightening to entrust LEAs with NAFRS like invasive tools for policing without ensuring robust legal protection and safeguards. To put it concisely, the major lapses in India’s surveillance framework are three-fold: (i) lack of statutory foundation; (ii) fragile and archaic procedural and legal safeguards; and (iii) continuing reports of unauthorized surveillance by LEAs, such that it cripples the credibility of government’s use of technology for surveillance and investigation. It is disquieting that government is still not introducing any legal reform to overcome these lapses. The slow progress in legal reforms could be attributed greatly to the lack of information and public-awareness about novel tech-enabled surveillance systems.56 In absence of any meaningful debate on the existence, nature and scope of surveillance technologies, it is hardly possible for courts and policymakers to identify that “where exactly the system is going wrong” and suggest reforms accordingly.57 The case of ‘National Security’ Secrecy From its inception, the lack of ‘public documentation’ detailing the ‘scope, functions, and technical architecture’ and ‘operational status’ of CMS has continued.58 It is scarcer in the case of NETRA, which is far more intrusive, sneaky and opaque than CMS. Meanwhile, it will be a matter of conjecture whether the government is making deliberate efforts to suppress public disclosures on the subject or not. However, this curiosity comes to rest in the case of NATGRID, the details regarding which government has itself designated as ‘restricted’ in the interest of ‘national security’.59 Notably, the government’s NAFRS proposal is also devoid of concrete information.60 Therefore, these tech-enabled surveillance projects profoundly suffer from the lack of oversight, transparency and accountability due to all the secrecy in which their details are preserved by the government, arguably, in the interest of ‘national security’.61 In an active constitutional democracy, issues like mass surveillance that affect the trust-based relationship between people and government should be litigated in the courts of law. However, the record of deference of Indian courts to executive in terms of ‘national security’ claims is discouraging for potential litigants.62 As most of the advanced surveillance technologies came into existence as ‘counter-terrorism’ efforts after 26/11 Mumbai incident, these technologies had support of public as national security initiatives. Therefore, even the Indian courts have been exceedingly complaisant to executive’s discretions in ‘national security’ matters, even when civil rights and liberties are at stake.63 For example, recently, the Madras HC allowed the use of drones for surveilling the anti-CAA protestors.64 Even in the landmark Aadhaar case, the Supreme Court of India read down the ‘national security’ exception to allow access to biometrics database on mere executive authorization without any external or judicial checks.65 While courts constantly discuss the need for accountability and transparency, it is also the legislative texts and constraints due to which courts ultimately “revert to a formalist analysis” and show blind deference to LEAs’ claims for secrecy “in the name of national security”.66 In this line, the courts have also examined section 123 of the Indian Evidence Act which provides ‘an extremely deferential standard for government documents’.67 The tension between secrecy and transparency becomes all the more significant when such invasive technologies are used for criminal investigations. The courts have had previously held documents, which emanates from illegal surveillance, as admissible evidence in trial.68 In trials, keeping such documents in secrecy may deprive innocent individuals of their right to cross-examine the evidence that has been used against them. As discussed above, the existing surveillance law regime has failed miserably in mitigating the infringement of citizens’ fundamental rights such as ‘right to privacy’. In this context, civil rights activists and privacy advocates had hopes from the Personal Data Protection Bill 2019 (the ‘Bill’), which was recently introduced in December 2019.69 The Bill is the first legislation that comprehensively focuses on privacy of Indian citizens and is expected to safeguard an individual’s right to privacy from State as well as private influence. But rather than progressing towards a transparent and accountable surveillance system, on the contrary, Clause 35 of the Bill exempts the State and its LEAs from the application of the Bill for the probable reasons of ‘security of the state’ and ‘public order’. Given the status of ‘national security’ jurisprudence, as mentioned, it is clear that Clause 35 in the Bill is an attempt to facilitate the state surveillance through a backdoor.70 The Bill, if passed in current form, will not provide any check and balance on the discretion of the government authorizing the exemption.71 There is no provision for judicial oversight or external check [such as Right to Information (RTI)] on such discretion. All of this raises an apprehension regarding government’s intention to misuse the ‘national security’ argument for wrongful control on citizens. Therefore, the State’s expansive surveillance powers have gone unchecked, while judiciary remained blindly deferent to the ‘national security’ argument of LEAs and permitted claims of secrecy. Given the strong deferential past it seems remotely possible that Indian courts will engage in examining weight of secrecy claims until public at large demands transparency.72 The surveillance powers are still expanding broadly amid a little public objection or public debate as the government keeping all its accountability measures internal and secret. It is only after 2012, when issues of privacy attracted attention as a political and social movement in worldwide context, the efforts to demand transparency in matters of LEAs’ surveillance capabilities have increased in India.73 In India, organizations like the Centre for Internet and Society and Software Freedom Law Centre have stepped-up their efforts to demand accountability and transparency using the RTI as tool.74 Expectedly, government has also opposed these efforts strenuously taking advantage of the ‘national security’ argument. In response to the RTI applications, the LEAs have argued, inter alia, that information about surveillance projects cannot be disclosed in public domain pursuant to the exemptions provided in the RTI Act in the interest of ‘national security’ and ‘ongoing investigations’. For instance, a series of RTI applications requested mere details of legal and procedural safeguards from PMO that government has adopted in the context of CMS and NATGRID. The government confirmed the existence of such safeguards but withheld its disclosure in the interest of ‘national security’ under the RTI Act.75 This kind of opposite reaction from governments over the matter of transparency safeguards indicates that how ‘national security’ secrecy claims have ended up impeding any meaningful legislative, judicial, or public oversight. Therefore, secrecy encourages practices of internal self-regulation without any external check. This way it keeps the cases of abuse of power under wrap and spills arbitrariness in disciplinary actions. In the void of information regarding LEAs’ practices and capabilities, it is difficult to direct legal challenges or mount legislative reforms to rein the flaws or loopholes of the existing framework. The public and legislators can only speculate or contemplate about potential abuses, while LEAs weigh in the argument of possible harms to the ‘national security’ for claiming secrecy even in the cases of disclosure requests for mere internal guidelines. PART II — PROFOUND CONCERNS ASSOCIATED WITH THE USE OF TECH-ENABLED SURVEILLANCE TOOLS IN SECRET There are inevitable negative consequences associated with imposition of ‘national security’ argument. This part of the article argues that keeping technological surveillance capabilities of LEAs in secrecy undermines the constitutional check of courts and legislatures. This induces a self-regulatory regime within LEAs in the matters of governance of technical procedure of surveillance, internal budget allocation for procuring technology, ethics of conducting surveillance, etc.76 This part describes those aspects of ‘national security’ argument that overturns the relationship between the public and LEAs on its head, to the detriment of both. Secrecy blocks the Courts from imposing checks or limits on application of Tech-enabled Surveillance As discussed, security agencies have in the past used technology for surveillance beyond the pressing limits, raising questions about their legitimate use. Indeed, limiting the arbitrary powers of the State is one of the primary objectives of the Constitution.77 The Part-III of the Indian Constitution provides fundamental rights that limit intrusive ways in which the government can monitor and investigate its people.78 Ordinarily, the effective interpretation of provisions of constitution and statutes is adjudicated by the courts in particular circumstances. However, there is no settled case in India that has tested the current legislative framework governing novel surveillance technologies.79 When technological capabilities are novel and secret, a potential legal challenge against use of such technology is hardly possible.80 The courts require a litigant to prove how the impugned tech-enabled surveillance system has certainly targeted him/her. In the US, the Supreme Court held, with respect to a surveillance programme, that plaintiffs lack standing unless the ‘threatened injury is certainly impending’.81 As the details about deployment and use of technologies are closely guarded secrets, litigants remain unable to challenge these invasive tools and systems. The petitioner struggles to prove that he suffered an injury to his rights beyond the acceptable threshold, as the threshold remains undetermined due to secrecy. Also, in criminal cases where evidences are recovered against an individual using tech-enabled surveillance, LEAs are capable of evading the adjudication on use of novel and unregulated technologies.82 For instance, in the US, where advanced surveillance tools are being debated for quite a long time now at public forums and courts, the LEAs have managed to avoid the challenge by using tactics such as presenting misleading warrant applications, narrating ‘parallel reconstruction’ or simply dropping charges for the moment, while keeping the Court and public in dark about the intrusive novel technologies that have been used for investigation.83 In the US, where legal safeguards are far more advanced on the subject of privacy and surveillance technologies, LEAs have circumvented legal challenges against misuse of technologies owing to obscurity of details.84 The details about surveillance tools remain a secret and make it hard for judiciary to adjudicate upon the constitutional limits of use of such tools for law enforcement.85 The judicial oversight gets completely fenced off from knowing the new technological advancements of surveillance methods due to non-availability of adequate official details. Secrecy obstructs legislative actions against abuse of surveillance powers Legislature is competent to frame laws and rules to keep a check on the methods and techniques that LEAs adopt for investigation. However, due to the lack of adequate information about the exact nature of technologies and how it can be misused, even the legislature does not volunteer to establish a legislative oversight.86 Secrecy for tech-enabled surveillance tools is mostly claimed on the ground that public knowledge would inhibit the effectiveness of intelligence gathering capabilities of LEAs.87 This thwarts the scope for any public deliberation on such tool’s usage and subverts the efforts to make the case for legislative action. In lack of an informed and meaningful conversation that how LEAs can use or misuse surveillance tools, against whom and for exactly what purposes such tools can be used, it is difficult that the legislature will make an effort to regulate such technologies openly.88 The ‘national security’ argument also compels legislature to resist itself from regulating the novel surveillance technologies. The LEAs claim secrecy even upon the rules and the standards that regulate their technological capabilities in the interest of ‘national security’ citing that disclosure by any means will result in hampering their confidential investigations.89 As per the argument, the legal limits on the misuse of technology incidentally indicate the technological limits, specifications and capabilities as well.90 Therefore, the ‘national security’ secrecy not only resists legislative oversight but also discourages having legal rules and standards governing and limiting the misuse of invasive surveillance technologies. Therefore, the secrecy in relation to techniques and functions of tech-enabled surveillance programme has resulted in discouraging, evading, and delaying the proper legislative control of its misuse.91 The community groups, activists, advocates and civil societies have to debate on concerns related to tech-enabled surveillance vehemently in order to persuade the legislature to resolve those concerns.92 Recently, India has witnessed a lot of public engagement in protests against the use of invasive tech-enabled surveillance during COVID-19 lockdown and anti-CAA rallies by LEAs.93 Such voices should amplify in order to demand reasonable efforts from legislature for regulation of tech-enabled surveillance powers of LEAs. Secrecy is widening the already developed trust hiatus between the State and the public The republic–democratic nature of the Constitution of India automatically makes its people sovereign.94 This feature of the constitution is preserved by entitling people with the right to know the activities and power of government and its entities.95 Right to know offers transparency which is precisely a mechanism to ensure accountability and promote democracy.96 The transparency and accountability in government actions are critical to encourage the trust between the public and the government.97 Therefore, one significant way in which the constitution protects the relationship between government and public is by allowing public to know about powers and practices of the government. On the other hand, secrecy is antithetical to the democratic principles of transparency and accountability.98 Secrecy implicitly suppresses the public debates and discourages the process of transparency which results in inducing the mistrust between those governing and those governed.99 For instance, suppose NAFRS will be integrated with NATGRID. This will enable LEAs to monitor captured footages and compare patterns using NAFRS in real-time with the images stored in citizen databases provided by NATGRID. Additionally, imagine that LEAs decide to compare each and every recorded or captured footage with the image of citizens as available through NATGRID. This way LEAs will be able to profile real-time position, behaviour and activity of any individual and selectively recognize that individual through database. This clearly induces constant fears of violation of privacy rights and mass surveillance. It is more troublesome given the fact that government explicitly denies any disclosure about the kind of data that will be available from NATGRID.100 Such secret and indirect control of lives of citizens by LEAs will be a threat to civil liberty and raises doubts on government’s powers, which negatively affects the trust of public in government.101 It remains unclear to what extent secrecy about emerging tech-enabled surveillance techniques, is shielding the malpractices of LEAs. The novel technologies, by nature, can be deployed expansively and utilized intrusively to collect and store huge amount of personally identifiable data of citizens. The stored data is readily available and searchable for government and its entities which can be used for any unknown purpose. It enables “identification of large number of suspicious activities and people by sifting through large quantities of digitized data”.102 These capabilities can be used by LEAs for both, criminal law enforcement and non-criminal regulation.103 Such ‘dragnet surveillance’ in secrecy creates a fear of chilling effect on the liberty, and privacy and speech rights of dissenters and protestors of government.104 Therefore, it can be used to segregate and monitor activists, protestors and political dissenters in secret, and suppress the opposition against government.105 Transparency is the primary safeguard that protects an individual from an extensive encroachment by the State.106 In this way, India’s law enforcement practices of secret tech-enabled surveillance hints at possibly the worst kind of violation of the principles of democracy. It is even more concerning given the fact India does not have comprehensive data protection legislation yet. Privacy is a sacred fundamental right and surveillance attacks at the heart of it.107 LEAs are expansively procuring and deploying surveillance technologies in ways about which public has no inkling.108 History is the witness that such kind of informational asymmetry in favour of government, between government and its citizens, gives birth to authoritarian regimes and dictatorships.109 Therefore, in the absence of legal and procedural safeguards, imposing secrecy tends to upend the trust-based relationship between the people and the government. Certainly, the LEAs have valid reasons to claim secrecy for their tech-enabled surveillance capabilities, but such secrecy encourages a self-regulatory regime fraught with issues of arbitrariness and corruption. It has been repeatedly pinpointed that the present legal framework governing communication surveillance in India is rife with abuse of powers by government entities.110 In such a legal regime, allowing anymore secrecy will result in unchecked and unregulated cases of illegal surveillance.111 The secrecy will deprive the citizens of any recourse of public accountability or transparency that lies at the heart of democratic constitutionalism.112 Secrecy limits the choice of better governance models for LEAs The government believes that the secrecy ensures effective intelligence collection and investigation as required in the interest of ‘national security’. However, there are more powerful reasons to believe that maintaining secrecy about power and functioning causes unfavourable results for LEAs. The premise is that keeping details of tech-enabled surveillance behind a veil eliminates chances of better governance. The constant suspicion among a community that government might be digitally snooping on them discourages the cooperative nexus between the community and LEAs.113 This develops mistrust and affects the mindset of community such that they collectively question the legitimacy of actions of LEAs.114 The literature suggests that transparency is a window through which police agencies establish legitimacy about their investigations and actions.115 Therefore, secrecy negatively impacts upon the performance of LEAs anyway as it disrupts their cooperative-engagement with citizens whom they serve. Keeping surveillance methods secret also denies the possibility of calling for public consultation on usage of a disruptive technology. Public consultation on the usage assists in getting various expert inputs, adoption of best practices and up-gradation of performance level to optimum. While maintaining the confidentiality about their tech-enabled surveillance activities, LEAs voluntarily limit their exposure to outside expertise.116 This curbs both effectiveness and efficiency of the LEAs contrary to the claims of the ‘national security’ argument. PART III — ASSESSING THE STRUCTURE OF ‘NATIONAL SECURITY’ ARGUMENT Without a fig of doubt, the ‘national security’ argument is apparently simple and imperative argument. It is based on a pressing logic that if the LEAs will make detailed disclosures about their expanding capabilities and techniques (including the procedural rules and guidelines), it will expose their entire infrastructure. It presumes that the potential criminals will manoeuvre the available details and leverage the loopholes to limit the efficiency of LEAs’ capabilities, in turn risking the security of the State. The argument’s primary premise is that criminals keep tab on disclosures related to LEAs’ techniques and capabilities before committing crime. The premise is further based on several assumptions. Firstly, that majority of criminals are sophisticate enough to find out countermeasures to the powerful tech-enabled surveillance capabilities of LEAs. Another assumption is that presently there is no information available about existence of technology or such capabilities to the public. This also subsumes that disclosures always affect efficiency of LEAs negatively. Finally, the assumption that anything slightly related to ‘national security’ claims should always be preferred over competing values of constitutional democracy. This part will assess each of the above given assumptions individually and will analytically examine the claims and limits. Assumption I: That the criminals gather details on LEAs’ investigation techniques and capabilities before committing crime The logic of ‘national security’ argument is centrally based on an assumption that a person intrinsically navigates the available details about LEAs’ techniques before committing a crime. There is inherent paradoxical error in this assumption which leads to challenge the entire fulcrum of the argument itself. Indeed, there are habitual and sophisticate miscreants who may make an attempt to analyse and manoeuvre the techniques of LEAs to evade the action, but certainly there are very few of them. It is a known fact that police agencies can intercept calls or track cells, yet in most cases cellular interceptions have facilitated arrest of infamous criminals.117 It is clearly observable that ‘national security’ secrecy is not sine qua non to preserve the effectiveness of LEAs’ investigational techniques. Such assumption is true only in cases of highly sophisticate criminals such as terrorists and should be treated as exception rather than rule.118 Perhaps this is the reason that most surveillance projects are associated with spectre of counter-terrorism efforts.119 However, when we decide that security interests of the State necessitate secrecy, we are concerned with its positive effects on investigations of a vast majority of cases. Therefore, the secrecy related to State’s procurement of policing technologies is not necessary for ‘national security’ and deprives the public from right to privacy and right to know, disproportionately. A ‘ritual incantation’ of national security, even where lesser intrusive option is available, is an excuse for surveillance and it is not only illegitimate but also harmful for the State.120 Assumption II: That there is no information available in public domain about the LEAs’ technological capabilities The argument is supposed to work only in case the security agencies are absolutely satisfied that required details are not at all available in public domain — neither from official release nor unauthorized disclosure. Because even if the ‘national security’ argument is important concerning the highly sophisticate criminals, it is a known case that sophisticate criminal actors are also likely to have developed countermeasures already given the slight of details available from unauthorized or media sources.121 Furthermore, the argument fails to prove that how even the strategic disclosures may also assist a criminal in evading the LEAs. The government avoids sharing even the procedural or legal safeguards or operational status related to such tech-enabled surveillance projects.122 Strategic disclosures, as the name suggests, are designed in the way that they do not expose the working details of techniques of LEAs, but merely provide the broader purposes, rules and safeguards under which surveillance will be carried out. Strategic disclosures merely fulfil the requirement of transparency and accountability. For example, government can provide the purpose of CMS with source of broad legal safeguards. Putting forth such general disclosures and keeping intricate working protocols under the wrap will make it uncertain for a criminal to know whether at which point he/she will be investigated. Assumption III: That concern of probable harms to ‘national security’ outweighs the need of transparency and accountability The argument seeks to uphold the security related concerns of the country. Indian laws are based on the foundation of constitutional and democratic principles. The fundamental rights to information, individual liberty and privacy are lungs for the edifice of our entire constitutional system.123 The government is expected to prevent any injuries to such rights as much as possible. The LEAs are expected to be transparent and accountable to public oversight.124 This means that claims of ‘secrecy’ should only be allowed in instances where it is certain or proven that ‘national security’ would be jeopardized due to public disclosures. It would be wrong to conclude that highly probable risks of circumvention of law enforcement techniques outweigh a certain risk of making India a surveillance state.125 As a constitutional democracy, India cannot afford to acquiesce with invasive tech-enabled snooping techniques to be governed under secret law.126 LEAs have to soak up the pressure of principles of transparency and accountability in their investigational methods.127 It is a basic cost of living in democracy and rule of law. If the primary-most concern of the government has always been ‘national security’ and preventing evasion of law, then presumably it should keep a great deal of constitutional rights and safeguards in dark. The imagination of such a scenario will include the LEAs carrying out investigations as per their whims and wishes, such that the nation has to embrace Orwellian state of affairs. However, in reality Indian constitution strictly mandates to adhere to principles of democracy. During the critical times in the past, people of India have zealously questioned government. Even in terms of existing tech-enabled surveillance capabilities of LEAs such as wiretapping, concerned citizens have successfully questioned the surveillance powers.128 Therefore, secrecy is not convincing with respect to novel technological techniques and capabilities. The ‘national security’ argument dubiously claims secrecy as it fails to explain that how providing meaningful legal reforms may also negatively impact on the effectiveness of LEAs.129 PART IV — LEGAL PROTECTIONS TO SECRECY CLAIMS OF LEAS IN THE INTEREST OF ‘NATIONAL SECURITY’ After recognizing the problems associated with imposition of secrecy and examining the strengths and limits of the ‘national security’ argument, the article now proceeds to explore the legal doctrines that protect secrecy claims of LEAs regarding their technological capabilities under the ‘national security’ argument. The principal sources of legislative enactments elucidating these doctrines are (i) the Right to Information Act 2005; and (ii) the Indian Evidence Act. Following are the legal doctrines which exempt LEAs from public disclosures: Exemption from disclosures for LEAs under the RTI Act for the ‘security’ interests of the State The RTI Act, 2005, purposively mandates the government and its entities to provide any information in its possession on the request of citizens, in a bid “to promote transparency and accountability in the working of every public authority”.130 If a public authority possesses any record in the form of data or statistics, or abstracts, or documents or guidelines or rules, a citizen as an applicant may access such records.131 Every public authority appoints a Public Information Officer (PIO) for dealing with such RTI requests.132 But of course, it is subjected to exceptions.133 Section 8 of the RTI Act in essence is the exception to the section 3 of the Act which empowers the citizens with the right to information, a cognate of the right to freedom of speech; and therefore, the Courts are required to interpret section 8 in strict, literal and narrow manner.134 The exceptions are of broad categories such that it includes the economic, scientific interests and the security of India and its relation with foreign states; information which would constitute contempt of court, or a breach of the privilege of the legislature or Cabinet proceeding; and inter alia.135 Key among these for this article are exemptions from disclosures claimed in the interest of ‘security interests of the state’136 and ‘ongoing investigations’.137 ‘8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;…. (h) information which would impede the process of investigation or apprehension or prosecution of offenders;’ The extent and scope of the terms ‘security interests of the state’ and ‘ongoing investigations’ determines what kind of official disclosures the public may demand from LEAs about its surveillance or investigational activities. In particular, section 8(1)(a) and (h) provides a great deal of elbow room to LEAs for claiming secrecy for its activities in interests of the ‘national security’ and ‘ongoing investigations’. The meaning of ‘security’ and ‘investigations’ is fairly broad but defined comprehensively.138 The terms have been frequently litigated but their scope still has not been decided conclusively. Therefore, the terms sweep a wide range of information within the meaning of the enlisted exemptions.139 Importantly, to the concern of this article, courts have exempted public authorities from disclosing information upon very low-key threshold of ‘probable’ risks to the ‘national security’ and ‘ongoing investigations’. In the past, the courts have permitted secrecy to public authorities in the interest of ‘security’ without convincingly demanding the discharge of adequate burden of proof that how disclosures will ‘certainly’ cause risks to ‘national security’.140 The Madras HC, went on to held that exemption under the Act may be granted mere on the demonstration that the information is ‘related’ to modus operandi of the agency and its disclosure ‘may’ jeopardize the function of such an ‘intelligence and security’ agency.141 Such remote nexus is definitely not a high burden of proof, and assures secrecy to LEAs with respect to their technological capabilities in more ways than justified.142 Meanwhile, section 24 of the RTI Act, 2005 absolutely absolves certain officially notified intelligence and security agencies from any burden of proof to avail exemption.143 As per the provision, an applicant neither can ask for disclosure of information from the intelligence and security agencies, which are specified in the second schedule to the Act, nor can ask for disclosure of any information submitted by such organizations to the government.144 Although, the courts have made it clear that it is not a blanket exemption but have allowed claims of secrecy on showing of far from probable risks to security interests of the state.145 As the novel surveillance technologies such as NATGRID, are supposed to be exclusively used by agencies enlisted in Schedule II, information about such technological capabilities often fall under section 24 exemption.146 The apex court has identified that most effective constraint on exemptions is “when the documents in question are already in public domain”, the secrecy under the Act will not serve any purpose.147 To put it strictly, claim for secrecy or confidentiality fails when the information is already in public domain. However, there has been incoherency in accepting an information to be ‘as available in public domain’ if the disclosure is from unauthorized source. Consequently, the adjudicating authorities have disallowed disclosures even for those matters which are already in public knowledge citing ‘probable’ risks to ‘national security’ as reason.148 The courts, the commission and PIOs baulk in undertaking an intense examination of the disclosures, on case to case basis, in order to determine that whether it will potentially risk the ‘national security’ or not. The status quo is that LEAs are required to merely demonstrate strong reasonable nexus between the disclosure and potential risks to ‘national security’. Even in cases where status quo has not been followed, they have failed to specify that right to know outweighs the concerns of ‘probable’ risks to ‘national security’ that ‘may’ arise due to disclosures.149 It also seems unlikely for them to take serious account of possibility of disclosure being in public domain by unauthorized sources. Conclusively, the courts and the commission ignore the investigation into the extent of legitimacy present in the ‘national security’ argument of LEAs for secrecy claims. Essentially, the failure of the RTI Act, 2005 in avoiding the creep of secrecy regime in law enforcement matters is quite visible. There exists a great deal of inconsistency and ambiguity in case-laws and law itself in weighing the seriousness of claims of threat to ‘national security’ against the countervailing values of constitutional democracy, and rule-based governance. The principles, to protect which the RTI Act has been enacted, are often getting subsided due to the might of claims of threat to ‘national security’. Thus, there arises a need to tie the loose ends of the RTI Act, which leaves a big room for secrets of government entities, leaving only a little for institutional oversight to interfere. Common law evidentiary privilege for government entities under the Evidence Law Indian courts have time and again discussed the right to information/know as set forth in the Article 19(1) of the Indian Constitution. The Supreme Court of India previously has noted that the general rule is indeed the disclosure to “ensure the continued participation of the people in the democratic process” as “sunlight is the best disinfectant”.150 However, it conclusively held that the constitutional protection for the right to information can be reasonably restricted. The court’s deference to government’s claims of exemption from disclosure to an extent is due to the Article 19(2) of the Indian Constitution. Article 19(2) grants the government and its entities the privilege to with-hold the disclosures in the ‘public interest’. The existing legal framework in India also allows such privileges even in the procedural aspects of criminal cases. Section 123 of the Indian Evidence Act, 1872 (hereinafter referred as the ‘Act of 1872’) notably provides the obeisant standard of evidentiary privilege for government documents grounded in ‘public interest’. ‘Section 123: No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.’ Furthermore, the section 162 of the Act of 1872 backs the privilege by limiting the inspection of an undisclosed document if it refers to “matters of State”.151 While the exceptions under the RTI Act bars the disclosure of official documents in public domain, the privilege as provided in the Act of 1872 deprives the defendants in criminal cases from seeking the disclosure of evidentiary document which coincidentally happens to be related to ‘matters of State’.152 In latter case, the secrecy of required documents portends more acute and severe negative consequences for seeker. Although, when a particular disclosure is sought under both the RTI Act and the Evidence Act, evidentiary privilege cannot be claimed if the disclosure is permitted under the RTI Act.153 The law does not provide much clarity about the granular aspects of the scope of the privilege. However, case-laws on the subject of evidentiary privileges for LEAs suggest that its stretch is near-identical to exemptions given under the RTI Act. The privilege, provided to public authorities like security and intelligence agencies, grants immunity from disclosing a broad sweep of documents. It includes investigational files, investigating techniques, identity of witness and authorizing personnel, information affecting privacy of a person, and any information that affects an investigation. The Delhi HC’s judgment provides the needed explanation of the basis for the privilege conceivably in the most unequivocal words. In CBI v Dharambir Khattar,154 the defendant sought production of certain documents from CBI which were related to telephonic interception order by Ministry of Home Affairs which allowed surveillance of defendant’s activities. Nevertheless, the Delhi HC held that the privilege applies uniformly to the procedural documents related to order of surveillance. The Court accepted that such disclosures cause “an adverse effect on the functioning of the law enforcement/investigating agencies and ultimately would be detrimental to public interest”.155 It is a speculative concern of the Court as eventually it did not examine that how disclosures could compromise the functioning of investigating agencies.156 Although, the evidentiary privilege for government, especially LEAs, cannot be said to be an absolute immunity from disclosures. It is subjected to the ‘balancing test’ in which the court “weighs disclosure against a government claim of public interest immunity”.157 However, the courts provide that under the balancing test a defendant has to show that there is a ‘strong need’ of producing evidence in order to overcome the privilege. Naturally, it will be difficult for a defendant to provide a stronger proof and prepare a compelling argument regarding something which is a secret.158 The ‘balancing test’ would have been a substantial relief if the courts instead sought LEAs to discharge higher burden of proof and demonstrate how ‘national security’ and ‘public interest’ is at risk due to particular disclosures. A catena of cases highlight that courts do not test the disclosures as intensively as the balancing test sounds. They show too much deference to the executive’s claim for secrecy under ‘national security’ argument.159 It had been enough for the satisfaction of courts, to know that the information in question is related to LEAs as per the authorities’ affidavit.160 The courts have previously noted that, if they took upon themselves the task of deciding the nature of the document, then “the discretion to ban its production by the head of the department must necessarily become illusory”.161 This implicates the reluctance on part of the courts to challenge the spectre of ‘national security’ argument. Furthermore, the evidentiary privilege for LEAs under the evidence law starkly challenges the principles of natural justice. The principle of natural justice stipulates that when a party in the case subjected to discretion of an authority, the party should get a fair hearing. The fair hearing includes transparency for a party in matters of evidences being produced against him.162 Therefore, the evidentiary privileges under the current legal framework are questionable. The justice cannot be found in secrecy. This calls for more clarity in the evidence law on the probabilistic nature of threats to ‘national security’. Otherwise in the absence of proper definition of ‘national security’, the statutory exclusion will result in blanket ban against the principles of natural justice in the case of a mere ‘possibility’ of threat to ‘national security’.163 The issues associated with the concept of these legal doctrines permitting ‘exemptions from disclosure’ will stand as stumbling blocks for potential legal challenges against expansion of the secret novel technologies that enable LEAs to invasively monitor people. The present legal doctrines are weak, complex and subjective. Collectively, the exemptions, they allow, impairs the only tool of external oversight that is available to public against the novel tech-enabled surveillance and investigation techniques of law enforcement i.e. RTI. PART V — RECOMMENDATIONS FOR LEGAL REFORMS TO HARMONIZE THE COUNTERVAILING VALUES OF CONSTITUTIONAL DEMOCRACY AND USE OF NOVEL SURVEILLANCE TECHNOLOGIES It is a prerequisite to provide more transparency in the current legal regime with respect to the ‘information’ withheld as secret by LEAs in the purposive interest of ‘national security’. The regime ignores countervailing values of constitutional democracy excessively in favour of far probable threats to ‘national security’. Therefore, it is important to consider two following problems related to ‘national security’ argument while proceeding with any suggestive reform programme: (i) secrecy apportions a great deal of free rein to the enforcement authorities, to self-regulate the use of invasive novel technologies in the absence of any meaningful legal or judicial oversight; and (ii) expansive deployment of intrusive technologies in secret tips off the balance of informational power against oblivious citizens in favour of the mighty government. This article recommends two meaningful approaches for resolving the ambiguities as exist in the system. Defining specific categories of disclosures which are certainly not risk to the interest of ‘national security’ After examining the existing laws and case-laws, it is clear that the legal framework presently protects far more information related to LEAs than justified under the ‘national security’ argument. Courts and the commission subjectively favour over-stretched secrecy with respect to technological capabilities of LEAs such that even on mere assertion that disclosure could hamper ongoing ‘investigations’.164 The infirmities and ambiguities related to the probabilistic nature of ‘national security’ can only be resolved by segregating the disclosures that are actually sensitive for the security interests of the State. This will enable discretionary oversight to objectively examine the link between demanded disclosures and probable harms to the ‘national security’. If an amendment to the existing surveillance laws is not likely to be materialized, then the judiciary should make an effort to take serious account of all the concerning countervailing principles and question the need of exemption.165 However, in India, both the statutory amendment and the judiciary’s vigorous role seems unlikely, then the only convenient mechanism is to specify the definitive limits of ‘national security’ secrecy. This will eliminate subjectivity and ambiguity in balancing exemption claims against the ‘public interest’ override.166 This will also make it more convenient for adjudicating authorities to sort out the exemptions that are certainly in interest of ‘national security’ rather than apprehensively deferring to probabilities. Therefore, following are certain categories of disclosures that are not required to be exempted strictly under the ‘national security’ argument and therefore should be specifically delineated: Firstly, the RTI Act and the evidentiary privilege, ‘should strictly limit the LEAs from keeping the existence of surveillance technologies itself as secret’. The repercussions of keeping the very existence of technology as secret and keeping its deployment and features as confidential are very different from each other. In the former case, it is an absolute breach of trust of public as shrouding the existence of a surveillance power in secrecy eliminates any chance of imposing a legal or judicial check on its misuse. These are ‘deep secrets’, and are considered to be in strict violation of constitutional principles of transparency “because they circumvent the basic democratic levers of our constitutional system”.167 Secondly, exemptions under ‘national security’ argument ‘should not include the internal regulations and rules’ that broadly governs security and intelligence agencies.168 Simply putting, the ‘national security’ argument cannot be availed for justifying the non-disclosure of merely the broader principles and internal rules that govern the working of LEAs. Keeping such an internal law as secret is essentially “at odds with the rule of law and basic notions of due process” and encourages the inappropriate practice of secret law.169 Thirdly, the government ‘should make efforts to bring forward the proper disclosures’ about the technological surveillance capabilities of LEAs in public domain, as soon as their usage becomes ‘norm’. It is logical and understandable to provide a breathing space for the LEAs to test the technologies for uplifting and calibrating their effectiveness without facing any hindrance from barrage of questions or preliminary scrutiny. However, once the surveillance technologies are adopted for routine use and applied comprehensively on public, then it becomes the matter of ‘public interest’.170 The ‘public interest’ should override secrecy claims.171 Apparently, such disclosures upon manoeuvring ‘may’ provide a tip-off to suave criminals about loopholes in such technology and make predictive policing a tough task for LEAs. But, conclusively, it is a sacrifice the nation has to make for upholding the principles of constitutional democracy. It is not the first time that LEAs will have to adjust, it already has an experience of adjusting with the need of transparency in cases of existing technologies like wiretapping, DNA testing and polygraphs. In the similar manner, there is a need to openly regulate novel surveillance technologies within reasonable time and break the veil of secrecy in public interest. Strategic disclosures and public consultation process before introducing novel surveillance technologies Presently, the LEAs, even independent state police agencies, on their own issue tenders for procurement, obtainment and deployment of novel technologies in the absence of any inter-ministerial meetings or public consultations.172 For instance, the Delhi Police was utilizing FRT for quite a long time now and the public did not even come to know about such existing FRT capabilities till the time police did not use it openly during the infamous anti-CAA protests and communal riots that followed. It was the media reports about tech-enabled surveillance that stirred privacy advocates to demand more information from Delhi Police.173 As the LEAs use such technologies without introducing them to the public, the scope for transparency gets wiped out. Public does not come to know about a technology surveilling them, and hence the misuse of such data collected remains unnoticed and unchallenged. The author proposes an aspiring approach to upend the status quo and reorient informational power in favour of public oversight. Furthermore, it is recommended that the legislature should mandate LEAs to publish a public notice whenever it procures or deploys a novel technology for surveillance on routinely basis. The notice should be attached with strategic disclosures and a call for public consultation about the novel technological capabilities of the agencies. When it comes to ‘strategic disclosures’, the notice should at least delineate the basic capabilities of technology and strictly mention the purpose of its procurement, the broad policies, principles and ethics that will govern it, and include the general circumstances in which it will be mostly used. When a technology is supposed to collect enormous amount of data, then a privacy policy ‘must’ also be enclosed with the public notice stipulating the data protection principles such as access, retention and use of data collected. The strategic disclosures should also specify the statutory sources which accord the legitimate authority to LEAs for use of surveillance technology in order to ensure its adherence to constitutional and statutory limits. The simple logic is to provide enough limited disclosures to empower the public to exercise a substantial oversight over the application of tech-enabled surveillance measures. Meanwhile, the policy of ‘public consultation process’ will help LEAs to consider public demands of countervailing democratic values at the outset only before any actual deployment of surveillance technologies.174 As per the approach, the public will get an opportunity to send their comments to the authorities on the strategic disclosures attached with public notice. This will be furthered by legislative hearings and introducing proper independent regulatory oversight. The application of technology will not be brought into effect until the authorities respond and consider each comment at the draft stage and accordingly release a final improvised policy. Such public consultation processes will prevent LEAs from using intrusive surveillance technologies in secret and anarchy. This whole approach is very akin and familiar to the public consultation process that several regulators related to telecom and technology industry already follow in India.175 The prior successful application of this administrative law approach to introduce regulations for several technologies indicates its effectiveness that will enable LEAs to transparently govern novel surveillance technologies.176 In the context of strategic disclosure and public consultation approach, there is a possibility of defining the limits of secrecy in a justified way. If the law enforcement authorities pitch information in public notice that are not sufficiently concrete or granular, the legislature and public will be in a strong position to demand greater transparency before the technology comes into use. This notice-and-comment process saves the public and LEAs from legal wrangling of a court of law which happens while determining whether a disclosure is exempted or not. The notice-and-comment process also helps legislature, public and LEAs in mutually determining disclosures that are substantial enough to be provided with public notice.177 This article suggests the proposal as it is based on the study of several legislative proposals recommended by broad axis of civil rights societies and privacy activists, which are pursuing reforms in India and around the world.178 There is a wave of global movement to encourage the regulation of novel and disruptive technologies. In this line, the author also recommends the government to enact a law specifically governing tech-enabled surveillance and its impact on countervailing values like transparency and accountability. CONCLUSION The innovations in surveillance technology have benefitted LEAs enormously in India such that their capabilities to monitor, identify, predict and track suspicious criminal individuals and activities have grown at an exponential rate. However, these powerful tech-enabled surveillance capabilities of LEAs tend to make India a surveillance state. The foundation of surveillance law in India is still the frail PUCL guidelines which were formulated more than two decades ago to regulate much lesser intrusive technology of telephone tapping. As the concerns of dragnet surveillance mounts, it is worrisome that the citizens of the country have no proper legal recourse to resolve profound concerns. The scarcity of public disclosures about existence, nature and extent of novel surveillance technologies holds back any possible process of reforming the surveillance law. Such secrecy not only betrays the countervailing values such as public accountability and transparency but also frustrates efforts to establish any legislative or judicial oversight. LEAs have justified this secrecy arguing that disclosures ‘may’ negatively affect the effectiveness of their counter-terrorism efforts, and henceforth, ‘may’ risk the ‘national security’. However, the term ‘national security’ is interpreted in vague and over-breadth manner, given the phantasm of LEAs’ counter-terrorism initiatives. This permits LEAs to invoke ‘national security’ argument exceedingly and allows far-more secrecy than what could be justified by probable harms to ‘national security’. The disproportionate ‘national security’ secrecy unnecessarily tramples down the informational symmetry and the trust-based relationship between the government and the public by inducing fears of en masse surveillance, privacy encroachment and liberty deprivation among citizens. There is an urgent need to pace up legal reforms in surveillance laws in order to tame the shoring up of surveillance infrastructure of the State. This is only possible when the government will pave a way for informational power of the citizens in the face of ‘probable’ harms to ‘national security’. To do so, the government may consider the approaches recommended in the preceding part of this article, lest the Orwellian state of affairs will prevail in the world’s largest constitutional democracy. Author is grateful to Anandita Bhargava and Arjun Gaur for their generous help in reviewing the prior drafts of the article. Author is further extremely thankful to his parents for their constant support and encouragement. Footnotes 1 Divij Joshi, ‘The Surveillance and Security Industry in India: An analysis of Indian Security Expos’ Center for Internet and Society, accessed 22 March 2020; ‘Role of Surveillance in Securing Cities’ Smart Cities Council India, accessed 10 April 2020; Smriti Parsheera, ‘Adoption and Regulation of Facial Recognition Technologies in India: Why and Why Not?’ (2019) Data Governance Network-National Institute of Public Finance and Policy, Working Paper 05/2019, . 2 ‘Government Hacking and Surveillance: 10 Necessary Safeguards’ (2017) Privacy International, accessed 1 April 2020. 3 Concept note on Policing in Smart Cities, (2019) Bureau of Police Research and Development (India) accessed 22 March 2020; Andrew G Ferguson, ‘Predictive Policing and Reasonable Suspicion’ (2012) 62 Emory LJ 259; Elizabeth Joh, ‘Artificial Intelligence & Policing: First Questions’ (2018) 41 Seattle UL Rev 1139; Kevin Miller, ‘Total Surveill, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment’ (2016) 164 U Pa L Rev 871. 4 Margaret Hu, ‘Small Data Surveillance v. Big Data Cybersurveillance’ (2015) 42 Pepp L Rev 773. 5 ACLU, ‘Community Control over Police Surveillance: Technology 101’ (2016), accessed 24 March 2020. (Discussed concerns associated with several novel technologies which are at disposal of the US law enforcement agencies for surveillance). 6 Zakia Shiraz and Richard J Aldrich, ‘Secrecy, Spies and the Global South: Intelligence Studies beyond the “Five Eyes” Alliance’ (2019) 6 International Affairs 1313. 7 Maria Xynou, ‘Big Democracy, Big Surveillance: India’s Surveillance State’ (Open Democracy, 10 February 2014) accessed 22 March 2020. 8 Jonathan Manes, ‘Secrecy & Evasion in Police Surveillance Technology’ (2019) 34 Berkeley Tech LJ 503, accessed 27 March 2020.  9 Editorial, ‘Scandalous Revelations: Secret Report by CBI Contains Shocking Details of Phone Tapping Ordered by Congress(I) Govts’ India Today (28 February 1991), accessed 28 March 2020. 10 Bharat Vasani and others, ‘Surveillance in the Post-Puttaswamy Era’, Bloomberg Quint (11 November 2019) accessed 28 March 2020. 11 People’s Union for Civil Liberties (PUCL) v Union of India, (1997) 1 SCC 301. (The Court observed that cellular interceptions negatively affect individual’s fundamental right to freedom, liberty and privacy.) 12 s 5(2), Telegraph Act. (‘Power for Government to take possession of licensed telegraphs and to order interception of messages’). 13 PUCL case 1997, ibid, paras 42, 46. 14 PUCL case 1997, ibid, paras 47–55. 15 Rule 419(a), Telegraph Rules; PUCL Case 1997 para 28. 16 s 5(2), Telegraph Act. (The statutory preconditions should be fulfilled notwithstanding that the Central Government is satisfied that interception is necessary in the interest of the security of the State). 17 s 5(2), Telegraph Act; Rule 419A(7) and (9), Telegraph Rules; 69(3), IT Act. 18 s 5(2), Telegraph Act, and s 69(1), IT Act. (The additional grounds on which power under s 69(1), IT Act, may be exercised are: ‘for preventing incitement to the commission of any cognizable offence’; and ‘for investigation of any offence’, while previously under s 5(2) of Telegraph Act there were only five grounds: (i) the sovereignty or integrity of India; (ii) defence of India; (iii) security of the State; (iv) friendly relations with foreign States; (v) public order). 19 Pranesh Prakash, ‘Misuse of Surveillance Powers in India (Case 1)’ (The Centre for Internet and Society, 6 December 2013) accessed 20 May 2020. (In 2012, the change of government in Himachal Pradesh brought into light the fact that previous government surveilled more than 1371 targets in unauthorized manner). 20 Chaitanya Ramachandran, ‘PUCL v. Union of India Revisited: Why India’s Surveillance Law must be Redesigned for the Digital Age’ (2014) 7 NUJS L Rev 105 accessed 28 March 2020. 21 Sudha Shetty, National Security Secrecy (CUP 2017); Ameet Datta, ‘Pegasus Attack: Did Govt’s Alleged “Spying” Comply With IT Act?’ Bloomberg Quint (1 November 2020) accessed 28 March 2020; ‘State of Cyber Security and Surveillance in India A Review of the Legal Landscape’ The Centre for Internet and Society, accessed 28 March 2020. 22 Gautam Bhatia, ‘India’s Growing Surveillance State: New Technologies Threaten Freedoms in the World’s Largest Democracy’, Foreign Affairs (19 February 2020) accessed 29 March 2020. 23 ‘Privacy International's Response to Consultation on IPA Draft Codes of Practice’ (2017) Privacy International, accessed 28 March 2020; Rohan Joshi, ‘India’s Central Monitoring System’ (2013) The Takshashila Institution accessed 28 March 2020. 24 Editorial, ‘Forget NSA, India’s Centre for Development of Telematics is One of Top 3 Worst Online Spies’ (India Today, 12 March 2014) accessed 28 March 2020. 25 Deepa Kurup, ‘In the Dark about India’s Prism’ The Hindu (6 June 2013) accessed 29 March 2020. (The data is collected through ‘voice calls, SMS, MMS, fax communications on landlines, CDMA, video calls, GSM and even general, unencrypted data travelling across social-media/internet using the standard IP/TCP Protocol’). 26 Department of Telecommunications, Ministry of Communications and Information Technology, Annual Report 2011-2012 86, , accessed 28 March 2020; Department of Telecommunications, Ministry of Communications and Information Technology, Annual Report 2012-2013 43, accessed 28 March 2014. 27 Shalini Singh, ‘Lethal Surveillance Versus Privacy’ The Hindu (22 June 2013) accessed 26 January 2014. 28 Clause 32.2, Unified Access Service License accessed 28 March 2020; Condition 32.2, Part I, Unified License accessed 28 March 2020; Maria Xynou, ‘India's Central Monitoring System (CMS): Something to Worry About?’ (The Centre for Internet and Society, 30 January 2014), accessed 28 March 2020. (The licensing terms mandate every TSP or ISP to install LIMs in their networks to enable interception for government agencies for lawful purposes) 29 Jaideep Reddy, ‘The Central Monitoring System and Privacy: Analysing What we Know so Far’ (2014) 10 IJLT 41 accessed 28 March 2020. 30 Snehashish Ghosh, ‘The State is Snooping: Can You Escape?’ (The Centre for Internet & Society, 27 June 2013), accessed 30 March 2020. [‘The system makes it possible for LEAs to hear and tape the real-time phone conversations, read e-mails (even the unsent drafts) and text messages and constant monitoring of social media accounts’]. 31 Shalini Singh, ‘India’s Surveillance Project May Be as Lethal as PRISM’ The Hindu (21 June 2013) accessed 30 March 2020. 32 See Answer to unstarred question number 772 asked by Nand Kumar Saiin the 218th Session of the Rajya Sabha, , accessed 30 March 2020. 33 Addison Litton, ‘The State of Surveillance in India: The Central Monitoring System’s Chilling Effect on Self Expression’ (2015) 14 Wash U Global Stud L Rev 799, accessed 30 March 2020. 34 Udbhav Tiwari, ‘The design and technology behind India’s surveillance programs’, (The Center for Internet and Society, 20 January 2017) accessed 30 May 2020. . 35 ‘Govt. to Launch Internet Spy System “Netra” soon’, Times of India (6 January 2014) accessed 30 March 2020. 36 ‘India’s Surveillance State’ (2014) SFLC-World Wide Web Foundation Final Report, accessed 2 May 2020 (hereinafter the ‘SFLC Report’). (It has also been reported that the government had planned to install 1000 NETRA storage servers across India, with each server having the capacity to process 300 GB of information per second) 37 ‘National Intelligence Grid begins operations; high security protocols deployed’, The Economic Times (22 December 2013) accessed 30 March 2020. 38 Gunjan Chawla and Smitha Krishna Prasad, ‘Response to Call for Submissions on “Surveillance Industry and Human Rights”’ (2019) Centre for Communication Governance at National Law University Delhi, accessed 18 April 2020. 39 See Tiwari (n 34) (‘Central Board of Direct Taxes (CBDT), Central Bureau of Investigation (CBI), Defense Intelligence Agency (DIA), Directorate of Revenue Intelligence (DRI), Enforcement Directorate (ED), Intelligence Bureau (IB), Narcotics Control Bureau (NCB), National Investigation Agency (NIA), Research and Analysis Wing (RAW), the Military Intelligence of Assam , Jammu and Kashmir regions and the Home Ministry’); ‘Govt. to Launch Internet Spy System “Netra” soon, Times of India (6 January 2014), accessed 30 March 2020. (The kinds of citizen databases include ‘tax and bank account details, credit card transactions, visa and immigration records and air and rail travel itineraries’). 40 Mukesh Ranjan, ‘Intelligence Grid for Sharing Crime Data by Year-End: MHA’ The Tribute (10 February 2020) accessed 30 April 2020. 41 See Parsheera (n 1); Imaoka Hitoshi, ‘Video Face Recognition System Enabling Real-time Surveillance’ (2016) 11 NEC Technical Journal 36 accessed 28 April 2020. 42 AW Senior and S Pankanti, ‘Privacy Protection and Face Recognition’ in SZ Li and AK Jain (eds), Handbook of Face Recognition (Springer 2011). 43 Monique Mann and Marcus Smith, ‘Automated Facial Recognition Technology: Recent Developments and Approaches to Oversight’ (2017) 40(1) UNSW Law Journal 121 accessed 28 April 2020. 44 ibid; R (on the application of Bridges) v Chief Constable of South Wales Police, [2020] EWCA Civ 1058. (‘Facial biometrics bear some similarity to fingerprints because both can be captured without the need for any form of intimate sampling and both concern a part of the body that is generally visible to the public. A significant difference, however, is that AFR technology enables facial biometrics to be procured without requiring the co-operation or knowledge of the subject or the use of force, and can be obtained on a mass scale’). 45 See Parsheera (n 1). (The databases are social media platforms, Aadhaar database, Transport Ministry’s digital database or CCTV network of cities). 46 Paul De Hert, ‘Biometrics and the Challenge to Human Rights in Europe. Need for Regulation and Regulatory Distinctions’ in Patrilio Campisi (ed), Security and Privacy in Biometrics (Springer 2013). 47 S Feldstein, ‘The Global Expansion of AI Surveillance’ (2019) Carnegie Endowment for International Peace accessed 28 April 2020. [‘As per the AI Global Surveillance Index released by the Carnegie Endowment for International Peace, 85 percent of the countries that they studied (64 out of 75) were making use of facial recognition systems for surveillance purposes’]. 48 A Murali, ‘The Big Eye: the Tech is all Ready for Mass Surveillance in India (Factor Daily, 13 August 2018) accessed 28 April 2020 (In cities like Surat, Kolkata, Chennai, Hyderabad and Mumbai, local police agencies are believed to have already using AFRT); Sukhmeet Bhasin, ‘Punjab Police win FICCI Smart Award’ The Tribune (24 August 2019) accessed 29 April 2020. [While Punjab Police even won award for its FRT infrastructure known as Punjab Artificial Intelligence System (PAIS)]. 49 Alexandra Ulmer and Zeba Siddiqui, ‘India’s use of Facial Recognition Tech during Protests Causes Stir’ Reuters (7 February 2020) accessed 29 April 2020. 50 National Crime Records Bureau, ‘Request for Proposal to Procure National Automated Facial Recognition System’ (2019) accessed 29 April 2020. (NCRB is a body under the aegis of Union Government and responsible for managing records on crime and criminals in India). 51 ibid (It proposes to collect video sources from extensive number of large citizens’ databases consisting various forms of citizens’ data). 52 See Bhatia (n 22). 53 See Ramachandran (n 20). 54 See Parasheera (n 1). (FRTs can be used with police wear cameras, drones and installed CCTVs). 55 Willie Allen Lynch v State of Florida, Case No 1D16-3290 (Fla. 1st DCA 2018). (The accused-appellant was identified by the FRT algorithm with a ‘one star of confidence’ about the correct match and yet investigating authorities proceed with conviction). 56 Centre for Internet and Society, ‘State of Surveillance in India’ (Privacy International, 29 March 2016) accessed 28 April 2020. 57 Zubin Dash, ‘Do our Wiretapping Laws Adequately Protect the Right to Privacy?’ (2018) 53 EPW Engage, accessed 28 April 2020. 58 Ajay Kanth, ‘Big Brother is watching: Snooping no Longer a State Secret in Kerala as Central Monitoring System Set to Go Live’ The New Indian Express (26 May 2018) accessed 28 April 2020 (The last and latest update available about the CMS programme’s operational status is that Kerala became the fourth state to make CMS operational after Delhi, Maharashtra and Telangana); Bhairav Acharya, ‘The Central Monitoring System: Some Questions to be Raised in Parliament’ (The Centre for Internet and Society, 19 September 2013) accessed 28 April 2020. 59 Mr Venkatesh Nayak v Ministry of Home Affairs, Appeal No CIC/SS/C/2011/000531 dated 25/01/2012; [The government added NATGRID in the Schedule II of the Right to Information Act, 2005, under which Public Information Officers (PIOs) of Prime Minister’s Office (PMO) no longer entertain RTI requests with respect to NATGRID]. 60 See Parsheera (n 1) (Neither any prior public consultation nor inter-ministerial discussion was held by NCRB before issuing the tender). 61 Shetty (n 21). (Such zeal of government to impose a massive surveillance network without providing information about safeguards or protocols severely betrays the democratic principles of transparency and accountability); See Soumyarendra Barik, ‘Home Ministry Avoids Answering Question on Govt's Plans to use Facial Recognition Technology’ (Medianama, 17 March 2020) accessed 28 April 2020. 62 See Bhatia, (n 22). 63 Mrinal Satish and Aparna Chandra, ‘Of Matemal State and Minimalist Judicial: The Indian Supreme Court's Approach to Terror-Related Adjudication’ (2009) 21 Natl Law Sch of India Rev 51; Sudha Shetty, ‘Surveillance, Secrecy, and the Search for Meaningful Accountability’ (2015) 51 Stan J Int'l L 69. 64 Varaaki and ors v The Chief Secretary and Ors, WMP No 36634 of 2019 in WP Nos 35712 and 35713 of 2019 (Mad-HC). 65 KS Puttaswamy v Union of India (Aadhaar), (2019) 1 SCC 1. 66 David Cole, Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar Publication 2013). (In the PUCL case, the court asserted the importance of robust safeguards to curb the unauthorized wiretapping, but failed in introducing prior judicial check of interception orders in the absence of a provision to that effect in the statute). 67 See Shetty (n 21). 68 Radhakishan v State of UP, AIR 1963 SC 822; RM Malkani v State of Maharashtra, 1973 SCR (2) 417; Selvi & Ors v State of Karnataka and anr, (2010) 7 SCC 263. (Admissible if relevant). 69 The Personal Data Protection Bill, 2019 (India). 70 Anirudh Burman, ‘Will India’s Proposed Data Protection Law Protect Privacy and Promote Growth’ (Carnegie India, 9 March 2020) accessed 21 August 2020. 71 Kazim Rizvi, ‘Personal Data Protection Bill 2019 and Surveillance: Balancing Security and Privacy’ (Inc42, 11 July 2020), accessed 21 August 2020. 72 See Shetty (n 21). 73 Andrew North, ‘NSA Leaks Helping India become “Big Brother” State?’ (BBC News, 31 October 2013) accessed 29 March 2020. (After the revelation of the USA’s NSA surveillance project which spied the digital communications of other foreign nations, the revelations of such surveillance programs of Indian government came into light). 74 ‘Information received under under RTI for surveillance’ (SFLC.in, 9 April 2014) accessed 11 May 2020; ‘RTI on Officials and Agencies Authorized to Intercept Telephone Messages in India’ (The Centre for Internet & Society, 2013), accessed 26 April 2020. (The campaign has helped to the great extent in knowing the excessive number of cases that LEAs target for interception annually. The multi-pronged movement has also helped in understanding the procurement and deployment of tech-enabled surveillance measures by government to a limited extent). 75 s 8(1)(a), The RTI Act 2005; Aman Sharma, ‘Govt keeps Natgrid, NIA out of RTI ambit’ (India Today, 21 June 2011) accessed 26 April 2020; See the SFLC Report (n 36); See Reddy (n 29). 76 Vipul Kharbanda, ‘Transparency in Surveillance’ (The Centre for Internet & Society, 2016) accessed 10 April 2020. 77 Justice K.S. Puttaswamy v Union of India (2017) 10 SCC 1 para 86; Bedavyasa Mohanty, ‘The Constitutionality of Indian Surveillance Law: Public Emergency as a Condition Precedent for Intercepting Communications’ (The Centre for Internet and Society, 4 July 2014) accessed 21 April 2020. 78 India Const. art 14, 19, 21. 79 Gautam Bhatia, ‘State Surveillance and the Right to Privacy in India: A Constitutional Biography’ (2014) 26 Natl Law Sch of India Rev 127, accessed on 1 April 2020. 80 See Acharya (n 58). (Examining that how the government’s kept a tight lid on the details of Central Monitoring System (CMS) and how the secrecy and less procedural protection around the project has made it impossible for citizens to challenge the central government’s invasive surveillance projects). 81 Clapper v Amnesty Int’l USA, 568 US 398, 402 (2013). (The US Supreme Court asked the plaintiffs to prove that they were in fact targeted by the objected surveillance system, as the information of the system and its operations were a closely guarded secret, so the plaintiffs could not make that case). 82 Patrick Toomey and Brett Max Kaufman, ‘The Notice Paradox: Secret Surveillance, Criminal Defendants & The Right to Notice’ (2014) 54 Santa Clara L Rev 843, 853–64; John Shiffman and Kristina Cooke, ‘Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans’ Reuters (5 August 2013) accessed 30 April 2020. 83 ibid; See Manes (n 8). 84 Adam Bytes, ‘Stingray: a New Frontier in Police Surveillance’ (CATO Institute, 25 January 2017) accessed 28 April 2020. (That how the FBI has sidelined the institutions keeping the abuse of such tools, and has further deliberately abandoned prosecutions to preserve secrecy about use of such tools). 85 United States v Patrick, 842 F.3d 540, 545–52 (7th Cir. 2016) (Wood, CJ, dissenting); United States v Rigmaiden, 844 F Supp 2d 982, 995–96 (D Ariz 2012). 86 Arvind Radhakrishnan, ‘Time for Parliamentary Oversight over Intelligence Agencies’ Deccan Herald (21 June 2012) accessed 28 April 2020; Deborah A Stone, ‘Causal Stories and the Formation of Policy Agendas’ (1989) 104 Pol Sci Q 281. 87 Anurag Kotoky, ‘India Sets Up Elaborate System to Tap Phone Calls’ Reuters (20 June 2013) accessed 29 April 2020. 88 Stone (n 86) 281; Singh (n 31). (This emphasizes on the need to initiate a conversation about the Indian surveillance programs such as CMS and NETRA which can be disturbing as same as the US surveillance programme the PRISM). 89 See Shetty (n 21). 90 See Maines (n 8); Lawrence Lessig, Code 1–9 (2nd edn, 2006). (famously argues that ‘code is law’); Joshua AT Fairfield and Erik Luna, ‘Digital Innocence’ (2014) 99 Cornell L Rev 981. 91 Clare Garvie and others, ‘The Perpetual Lineup: Unregulated Police Face Recognition in America’ (2016) Geo L Ctr on Privacy & Tech accessed 28 April 2020. 92 Tim Cushing, ‘House Oversight Committee Calls for Stingray Device Legislation’, (Techdirt, 22 December 2016) accessed 28 April 2020. (In the US, a sustained public debate campaigns by advocates, activists and NGOs on cell interception devices such as Stingrays, has forced the US legislature to consider regulation of such devices). 93 Medha Mandaviya, ‘Activists Rally Against “illegal” Surveillance of CAA Protests’ The Economic Times (31 December 2019) accessed 28 April 2020; Hannah Ellis-Petersen, ‘India's Covid-19 App Fuels Worries over Authoritarianism and Surveillance’ The Guardian (4 May 2020) accessed 10 May 2020. 94 Swami Ranganathan, ‘Enlightened Citizens and our Democracy, Enlightened Citizen and our Democracy’ (1995) 41 Indian Journal of Public Administration 609, 612,. 95 See Kharbanda (n 76). 96 H Brooke, ‘Citizen or Subject? Freedom of Information and the Informed Citizen in a Democracy’ (Unpublished Doctoral thesis, University of London 2016). 97 Vincent Mabillard and Martial Pasquier, ‘Transparency and Trust in Government: A Two-Way Relationship’ (2015) 6(1) Jahrbuch der Schweizerischen Verwaltungswissenschaften 23. 98 E Horn, ‘Logics of Political Secrecy. Theory’ (2011) 28 Culture & Society 103. 99 JE Stiglitz, ‘On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life’ in MJ Gibney (ed), Globalizing Rights: The Oxford Amnesty Lectures 1999 (OUP 2003). 100 Venkatesh Nayak (n 59), Infra Part I. 101 DJ Solove, ‘The First Amendment as Criminal Procedure’ (2007) 82 New York Uni L Rev 112; DJ Solove, ‘I've Got Nothing to Hide and Other Misunderstandings of Privacy’ (2012) 44 San Diego L Rev 771. 102 Elizabeth Joh, ‘The New Surveillance Discretion: Automated Suspicion, Big Data, and Policing’ (2016) 10 Harv L & P’Y Rev 15, 19. 103 Jennifer Daskal, ‘Pre-Crime Restraints: The Explosion of Targeted, Non-custodial Prevention’ (2014) 99 Cornell L Rev 327. 104 Monica Youn, ‘The Chilling Effect and the Problem of Private Action’ (2013) 66 Vand L Rev 1473, 1481. (‘A chilling effect occurs where one is deterred from undertaking a certain action X as a result of some possible consequence Y’); Dawinder S Sidhu, ‘The Chilling Effect of Government Surveillance Programs on the Use of Internet by Muslim Americans’ (2007) 7 U MD L J Race Relig Gender & Class 375, 391–93. (A Muslim community in US was wary of being monitored by the US government and hence they limited their internet usage). 105 Sukanya Shantha, ‘Indian Activists, Lawyers Were “Targeted” Using Israeli Spyware Pegasus’ The Wire (31 October 2019) accessed 28 April 2020 (Allegedly the present Indian government hired surveillance services of Israeli surveillance firm NSO Group which attacked phones of several Indian activists and lawyers using a spyware named as ‘Pegasus’); Apar Gupta, ‘Is India becoming a Surveillance State?’ Bloomberg Quint (23 December 2018) accessed 28 April 2020 (‘These will no longer target those who wield or aspire for power, but more ordinary people, minorities and the poor who lack resources to safeguard themselves’); Editorial, ‘Arun Jaitley Phone-Tapping Case: 6 More Held’ The Hindu (14 November 2013) accessed 28 April 2020. 106 See Kharbanda (n 76). 107 Rizvi (n 71). 108 James Losey, ‘Surveillance of Communications: A Legitimization Crisis and the Need for Transparency’ (2015) 9 Int’l J Comm 3450, 3459. 109 Aryan Babele, ‘Public Health Surveillance in India: A Question of an Individual’s Liberty and Privacy Amid a Pandemic’ (The Leaflet, 25 April 2020) accessed 30 April 2020. 110 See Kharbanda (n 76) (‘It is no secret that the current framework of surveillance in India is rife with malpractices of mass surveillance and instances of illegal surveillance. There have been a number of instances of illegal and/or unathorised surveillance in the past’); Srinivas Kodaly, ‘Hyderabad Police Has A Fetish For Army-Style Surveillance of the Poor’ Bloomberg Quint (8 November 2019) accessed 4 May 2020. 111 Christina M Mulligan, ‘Perfect Enforcement of Law: When to Limit and When to Use Technology’ (2008) 14 Rich JL & Tech 13. 112 Talia Ralph and Jason Overdorf, ‘Is India’s Government Becoming Big Brother?’ Global Post (9 May 2013) (‘This has been done with neither public nor parliamentary dialog.’); Addison Litton, ‘The State of Surveillance in India: The Central Monitoring System’s Chilling Effect on Self Expression’ (2015) 14 Wash U Global Stud L Rev 799, accessed 3 May 2020. 113 Prakash Pranesh, ‘How Surveillance Works in India’ New York Times (10 July 2013) accessed 22 April 2020. 114 Andrew Goldsmith, ‘Police Reform and the Problem of Trust’ (2005) 9 Theoretical Criminology 443, 470. 115 Tom Tyler, ‘Procedural Justice and Policing: A Rush to Judgment?’ (2017) 13 Ann Rev L & Soc Sci 29; Tracy Meares, ‘The Path Forward: Improving the Dynamics of Community-Police Relationships to Achieve Effective Law Enforcement Policies’ (2017) 117 Colum L Rev 1355, 1360. 116 Catherine Crump, ‘Surveillance Policymaking by Procurement’ (2016) 91 Wash L Rev 1595; Sandeep Unnithan and others, ‘The Secret World of Phone Tapping’ India Today Magazine (9 December 2012) accessed 22 April 2020. (‘Conscious of its potential for misuse’ in the absence of proper information, the UP ATS declined to acquire the vehicle mounted active off-air interception tools). 117 Unnithan, ibid (Surveillance of phone calls helped policemen to achieve vital breakthroughs in several high-profile cases). 118 See generally Amelia Tait, ‘Technology and Tragedy: How the Government uses Terrorism to Justify Surveillance’ New States Man (4 April 2017) accessed 22 April 2020. (‘Only 1.4 deaths a year are caused by terrorism in the UK. You are more likely to be killed by a cow or a vending machine. Why, then, should every British citizen’s right to privacy be curtailed?’). 119 See Xynou (n 7). 120 Arindrajit Basu, ‘Extraterritorial Algorithmic Surveillance and the Incapacitation of International Human Rights Law’ (2019) 12 NUJS L Rev 189. 121 See Manes (n 8). 122 See SFLC Report (n 36). (In relation to CMS, it says that ‘save a few rare press releases, little to no information is publicly shared regarding surveillance initiatives and even purely procedural information such as internal guidelines requested under the Right to Information Act is consistently denied claiming exemption under Section 8(1)(a) authorization, conduct and review of as they relate to national security matters’). 123 Re Banners Placed on Road Side in the City of Lucknow v State of UP 2020 SCC Online All 244. 124 Paul Bernal, ‘Data Gathering, Surveillance and Human Rights: Recasting the Debate’ (2016) 1 J Cyber Policy 243, 264. 125 Joe Matthews and others, ‘Intelligence in a Constitutional Democracy- Final Report’ Ministerial Review Commission on Intelligence Republic of South Africa (2008) accessed 22 April 2020. 126 Jonathan Manes, ‘Secret Law’ (2018) 106 Georgetown L J 803 accessed 22 April 2020. 127 DK Basu v State of West Bengal (1997) 1 SCC 216. (‘Transparency of action and accountability perhaps are [the two] safeguards which this court must insist upon.’) 128 Above Part II. 129 Justin Florence and Matthew Gerke, ‘National Security Issues in Civil Litigation: A Blueprint for Reform’ Brookings, Working Paper (2008) accessed 25 April 2020. 130 Preamble, The RTI Act 2005. 131 s 2(f), The RTI Act 2005. 132 s 5, The RTI Act, 2005. 133 s 8, The RTI Act 2005; JN Barowalia and RM Lodha, Commentary on rhe Right to Information Act (4th edn, Universal Law Publishing 2016). (hereinafter referred as ‘Commentary on the RTI Act 2005’). 134 See Commentary on the RTI Act 2005, 268; CBSE v Aditya Bandopadhyay, (2011) 8 SCC 497; Supreme Court of India v Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459. 135 Prakriti Bhatt, ‘Whistle Blowing: A Hobson’s Choice? Cherry-Picking Between State Authorities and Third-Party Internet Platforms’ (2019) 10 Law Rev GLC 1. 136 s 8(1)(a), the RTI Act, 2005. 137 s 8(1)(h), the RTI Act, 2000. 138 Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775. (‘includes the “investigation” carried on by any agency whether he be a police officer or empowered or authorized officer invested with the power of investigation’). 139 See Sudha Shetty, ‘Litigating Secrets: Comparative Perspectives on the State Secrets Privilege’ (2009) 75 Brooklyn L Rev 201. (‘The RTI loophole for excluding disclosure of national security policy is extremely broad and could be used by the executive branch to avoid disclosure of information that has only an attenuated connection to national security’). 140 Attorney General for India v Amratal Prajivandas, (1994) 5 SCC 54; Supreme Court in Union of India v Tulsiram Patel, (1985) 3 SCC 398. (‘ … various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters … ’). 141 S Vijayalakshmi v Union of India, 2011 SCC OnLine Mad 1403. 142 See Reddy (n 29); See ‘MHA refuses to give disclosure of reasons behind allowing intelligence agencies to access data’ Live Mint (3 February 2019) accessed 27 April 2020; Soumyarendra Barik, ‘Delhi Police “hired” Drones to Record Assembly Elections and Delhi Riot’ Medianama, (22 March 2020) accessed 27 April 2020. 143 ‘State of Cyber Security and Surveillance in India a Review of the Legal Landscape’, The Centre for Internet and Society, accessed 28 April 2020; FAA, Addl DGP CID of Haryana v CIC, CWP No 12904/2009. (‘A combined reading of these provisions would reveal, only that information is exempted, which is directly effecting and co-related to the ‘Intelligence’ and ‘Security’ of that organization of the State and not otherwise’). 144 s 24(1), the RTI Act 2005. 145 CPIO, Directorate of Enforcement v Bimal Kumar Bhattacharya, WP (C) No 345 of 2018; Durga Prasad Choudhary v. CPIO, Directorate of Enforcement, 2019 SCC OnLine CIC 1231. (There is no blanket exemption, but the information which can be disclosed should be only related to ‘human rights violation’ or ‘corruption’). 146 Lal Bahadur Ram v Assam Rifles, Shillong, CIC/VS/A/2015/000585/SB. (The central information commission held that Assam Rifles has been exempted from the provisions of the RTI Act under s 24(1) and further that it is ‘suffice to say that it has been the consistent view of this Commission that exemption is available to the exempted organization only in respect of technical/ technological/ operation matters’). 147 Yashwant Sinha v Central Bureau of Investigation (2019) 6 SCC 1. 148 Maj Gen V K Singh v Union of India, 2010 SCC Online Del 4342; Union of India v Central Information Commission, (2009) 165 DLT 559. 149 Yashwant Sinha (n 147); See Cole (n 66). [‘There is no indication that the adoption of a Right to Information statute in 2005 has substantially affected the reasoning of the courts with regard to security-related secrecy’]. 150 Dinesh Trivedi v Union of India, (1997) 4 SCC 306; SP Gupta v President of India AIR (1982) SC 234. 151 s 162, the Indian Evidence Act, 1872; Narottamdas L Shah v State of Gujarat and Anr, (1971) 12 GLR 894. (s 123 must to be read with s 162). 152 The State v Hari Ram, Criminal Revision No 56-R of 1967. (P&H HC) (All records connected with police surveillance are confidential and strictly exempted from disclosure). 153 Yashwant Sinha (n 147). 154 CBI v Dharambir Khattar, (2015) 224 DLT 521. 155 ibid para 7. 156 ibid (As the defendant criminal did not ask for documents incorporating investigation methods and techniques, it was just the copy of the proposal for initiating cell interception as sent to MHA by CBI). 157 People’s Union for Civil Liberties and Anr. v Union of India, (2004) 2 SCC 476. (‘PUCL Case 2004’) (Upheld the denial of request for disclosure of information). 158 Mishika Bajpai, ‘Common Law Right to Defense and Disclosure in India’ (2018) 2 Harv Intnl J 59 (online) accessed 28 April 2020. 159 See Satish and Chandra (n 63) (argues that Indian courts have been historically deferent to the ‘national security’ argument of the executive). 160 R.K. Jain v Union of India, (1993) 4 SCC 119. (‘further opportunity may be given to file additional affidavit or [the Minister] may be summoned for cross-examination’). 161 State of Punjab v Sodhi Sukhdev Singh, AIR 1961 SC 493; Ex-Armymen’s Protection Services (P) Ltd v Union of India, (2014) 5 SCC 409. (In the context of subjective discretion for determining matters related to ‘national security’, the court has observed that ‘it is not for the court to decide whether something is in the interest of State or not’). 162 State Bank of Patiala v S.K. Sharma, (1996) 3 SCC 364, 387, 389, 390 (India) (‘Justice means justice between both the parties.’); Niki Kuckes, ‘Civil Due Process, Criminal Due Process’ (2006) 25 Yale L & Pol’y Rev 1. 163 Tribhuvandas Bhimji Zaveri v CCE (1997) 11 SCC 276. 164 s 8(2), The RTI Act, 2005; Shri Shanker Sharma and M/s. First Global Stock broking Pvt Ltd and ors v Director of Income Tax (Inv.)-II & CPIO, Deptt of Income Tax, Mumbai, CIC/AT/A/2007/00007 dated 10.07.2007; Shri Vinod Kumar Jain v Directorate General of Central Excise Intelligence, New Delhi Appeal No CIC/AT/A/2010/000969/SS. 165 Katie Townsend and Adam A Marshall, ‘Striking the Right Balance: Weighing the Public Interest in Access to Agency Records Under the Freedom of Information Act’ in David E Pozen and Michael Schudson (eds), Troubling Transparency: the History and Future of Freedom of Information (Columbia University Press 2018) 226, 233. 166 S.R. Goyal v PIO, Services Department, Delhi, Appeal No CIC / WB/A/20060523, dated 26.3.2007. (It observes that if public interest in the disclosure outweighs the harm to the protected interests, public authority must disclose the information). 167 David E Pozen, ‘Deep Secrecy’ (2018) 62 Stan L Rev 257, 288. 168 Internal law here refers to those rules, ethics, principles and best practices that security and intelligence agencies claim to follow to protect individuals’ rights while imposing tech-enabled surveillance. These agencies exercise their powers in the interest of nation and hence their actions largely affect the public. Therefore, such actions should be governed under broad principles that are known in public domain and should not be allowed to be exercised in the absence of democratic checks under the vague ‘national security’ argument. 169 Jonathan Hafetz, ‘A Problem of Standards?: Another Perspective on Secret Law’ (2016) 57 WM & Mary L Rev 1; Dakota S Rudesill, ‘Coming to Terms with Secret Law’ (2015) 7 Harv Nat’l Sec J 241; Sudha Setty, ‘No More Secret Laws: How Transparency of Executive Branch Legal Policy Doesn’t Let the Terrorists Win’ (2009) 57 Kan L Rev 597. 170 See Manes (n 126). (‘routine’ use does not mean frequent use, but instead that the technology is among the tools that agencies have at their disposal whenever they choose to use it. Democratic accountability and public deliberation concerns do not dissipate just because a technology is used relatively infrequently). 171 Johan Lidberg and Denis Muller, In the Name of Security- Secrecy, Surveillance and Journalism (Anthem Press 2018). 172 Such authority has been found to be exercised frequently for procuring technologies that enable surveillance such as drones and FRT; See Kolkata Police Directorate, ‘e-Tender for Supply, Installation, Commissioning & Maintenance of Face Recognition System for use of Kolkata Police’ No: WBKP/CP/NIT-44/FACE RECOGNITION SYSTEM/TEN, (04/06/2018) accessed 28 April 2020; Saurabh Trivedi, ‘Police Issue Tender for Procurement of Drones’ The Hindu (4 January 2020) accessed 28 April 2020. 173 Jay Mazoomdar, ‘Delhi Police Film Protests, Run its Images through Face Recognition Software to Screen Crowd’ Indian Express (28 December 2019), accessed 28 April 2020; Sushovan Sircar, ‘Can Face Recognition Technology Accurately Identify Delhi Rioters?’ Bloomberg Quint (13 March 2019) accessed 4 May 2020. 174 Ministry of Law and Justice Legislative Department, Decisions taken in the meeting of the Committee of Secretaries (CoS) held on 10th January 2014 under the Chairmanship of Cabinet Secretary on the Pre-legislative Consultation Policy (PLCP), Govt of India (2014) accessed 5 May 2020. [The policy as formulated in 2014 provides that every legislation (principal or sub-ordinate) shall be subjected to pre-legislative scrutiny. It is such that, ‘the policy requires prior publication of the legislation, publication of an explanatory note and receipt of comments on the draft legislation. The summary of comments and the response to the comments is to be placed before the Cabinet and the relevant Parliamentary Standing Committee’]. 175 See generally D Kapur and M Khosla, ‘The Reality of Indian Regulation’ in D Kapur and M Khosla (eds), Regulation in India: Design, Capacity, Performance (Hart Studies in Comparative Public Law, Hart Publishing 2019). (Discusses the Telecom Regulatory Authority of India’s (TRAI) and MeiTY’s processes of effective public consultation for OTT regulation and Data Protection Law, respectively. It recommends such process for all new technologies). 176 ibid. 177 Cellular Operators Association of India and Others v Telecom Regulatory Authority of India, (2016) 7 SCC 703. [‘a legislation along the lines of the U.S. Administrative Procedure Act (with certain well defined exceptions) by which all subordinate legislation is subject to a transparent process by which due consultations with all stakeholders are held, and the rule or regulation making power is exercised after due consideration of all stakeholders’ submissions, together with an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them’]. 178 See SFLC Report (n 36); See ACLU, ‘An Act to Promote Transparency and Protect Civil Rights and Civil Liberties with Respect to Surveillance Technology’ (2017) accessed 5 May 2020. © The Author(s) (2020). Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - Intrusive tech-enabled surveillance and ‘National Security’ secrecy: mounting concerns of mass snooping amid informational asymmetry JF - International Journal of Law and Information Technology DO - 10.1093/ijlit/eaaa020 DA - 2020-12-11 UR - https://www.deepdyve.com/lp/oxford-university-press/intrusive-tech-enabled-surveillance-and-national-security-secrecy-Y2xG4nattC SP - 1 EP - 1 VL - Advance Article IS - DP - DeepDyve ER -