Thomas Jefferson once said “those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one”- which is quite true even today in the light of the technological progress leading to inevitable methods of privacy invasion. The recent notification issued by the Ministry of Home Affairs (MHA) authorising ten Central agencies to intercept, monitor and decrypt online communications and data is stoked by consistent exaggerations of actual threat – exploited by the Union Government to justify it as an integral part of its counter-terrorism policies.
The notion that the threat of terrorism vested the Government with virtually unlimited authority to do anything to “keep the nation safe,” including the authority to break the law is bound to create a furore in our socio-political landscape. Such a notification is symptomatic of a perverse trend by the Government seeking to snoop into conversations, privileged communication and browsing culture of millions of gullible citizens.
Today, cyber space has become the epicenter of our lives in expressing a citizen’s personality and sense of self. In fact, to permit surveillance would mean virtually exposing all forms of interaction of the citizens to comprehensive snooping.
Information technology is changing rapidly, and destroying many characteristics of privacy. In this context, the Central Government has a unique defense to such a notification; it has authority under provision of Section 69 of the Information Technology Act, 2000 that enables government agencies to intercept personal information of citizens under certain conditions. To be brutally fair, one cannot find fault with the current Government alone, the stage was set for snooping on citizens during the UPA regime.
The legal landscape of India’s surveillance framework is a bit complex; it is governed by Telegraph Act, 1885 for wiretapping and the Information Technology Act, 2000 for electronic surveillance. Under the current legal regime, the agency has to seek permission from the Home Secretary on a case-to-case basis and, of course, the detailed reasons for such request are mandated to be provided in writing. The Home Secretary is free to permit or deny permission to such agency seeking surveillance.
Unfortunately, the instant notification has altered the well established procedures, as it gives unfettered discretion to the 10 agencies for snooping which perfectly demonstrates adoption of radical and extremist theories of power as exercised during the emergency period.
There is a general perception that every Indian citizen is vulnerable to snooping. Worse, access to computers would enable authorities to manipulate collected data and a person can even be framed for offences he has not committed. The notification directly contravenes the privacy judgment (2017) of the Supreme Court which upheld the right to privacy as a fundamental right. Mandating sweeping powers to so many agencies without proper institutional oversight is tantamount to muzzling the freedom of citizens.
The value of privacy of citizens has also been appropriately echoed in the International Covenant on Civil and Political Rights (ICCPR, 1966), Article 17 places limits on the powers of the state to conduct covert surveillance on individuals. The privacy judgment has craftily interpreted the constitutional contours of the privacy issue without dealing with Section 69 of the IT Act in a proper perspective. It was imperative that Section 69 of the Information Technology Act should have been junked immediately after the privacy judgment. The proposed surveillance framework seems to fail the test of constitutionality in the absence of a rational nexus between the authorisation of interception and the underlined objectives. Any surge of national security or patriotism cannot spur the heightened level of datesharing with state or instrumentalities of state. Any infringement of the right to privacy must be proportionate to the protection of national security and it should be minimalist in nature.
The power of surveillance can be thought of as overwhelming, crafty, circulating, and smart, but it is emblematic of a massive circumvention of critical components of citizens’ rights. The relationship between privacy and technology has become increasingly apparent in the light of the sophistication of communication systems and advanced methods of interception to those communications. The current debate resonates the fact that technology often trumps the law and we are continually trying to apply relatively old laws and legal interpretations to new technologies. The surveillance techniques prove to be an unruly horse considering its tentacles spreading into the relatively ungoverned and lawless terrain.
In fact, the dichotomy of national security and surveillance reflects a fundamental tension – between security and freedom endangering the cherished value of individual freedom. The MHA notification indicates that the government is as much a threat to freedom as it is an enabler of it.
In a democracy like ours, it is the dissidents and marginalised who bear the brunt of such surveillance; on the other hand, those who support the government often mistakenly believe they are immune. And history shows that the mere existence of a mass surveillance apparatus, regardless of how it is used, is in itself sufficient to stifle dissent. The executive branch of Government should always respect and protect human dignity and uphold the human rights of all persons though the right to privacy is not free from reasonable restrictions unlike other fundamental rights. The Government must consider information privacy as an attainable right rather than a privilege given by the Constitution.
It is imperative that Parliament should demonstrate its collective will by legislating a Surveillance Code without leaving such a critical issue to the vagaries of executive fiat. The framers of our Constitution sought to create an effective government protecting civil safety and security without diluting the cherished democratic values which is the centre of the surveillance debate.
(Sanjeeb Panigrahi is a Supreme Court Advocate.)