This article is written by Shaily Nagar.

Introduction

Privacy has gained enormous respect and importance all over the world as an essential cherished value. According to Black Law’s Dictionary. “Right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”. The right to privacy is important for an individual to grow to his fullest development with dignity and pride. 

In the modern day era where one carries millions of activities on the web as well as elsewhere generating large amounts of data. Therefore the protection of people from breach of this data has never been as difficult as it is now. However the scope and extent to privacy is still under its development; it varies across social jurisdictions making it more difficult for the people to understand what actually privacy is. Therefore it is highly important to make this concept clear now for better execution of this fundamental right.

In today’s world where public interaction has grown immensely both online and offline has given rise to threats to public safety and security resulting from the online world. Therefore, the governance of this online world which has provided platform for many lawful activities to carry out smoothly, has become utmost important for any government in this world to protect their nation. But this does not mean that government has absolute power to do interception and surveillance, meaning thereby that surveillance and interception should be done in conformity with the constitutional principles. This power of government should be exercised reasonably. Although, it is just to abridge privacy in the nation’s interest but there should be procedural safeguards to ensure to assess the situations in which privacy can be compromised. 

Privacy in India

Privacy has always been an integral part of human life since time immemorial. Though not enumerated in the constitution of India it has always been an ambiguous and not recognized part of Article 21 that is Right to life and personal liberty. The court for the first time talked about privacy in the case of M.P. Sharma v. Satish Chandra, wherein it was held that an analogy cannot be drawn between the American Constitution and the Indian Constitution and thus denied the existence of right to privacy in India.

However the big decision came in Kharak Singh v. State of U.P, while interpreting the term “personal liberty”. The court in this case though not recognized privacy as a fundamental right but said that the arbitrary intrusion done by police officers in the name of searches and seizure is against the personal liberty of a person, therefore setting up a basis for privacy. The minority opinion given by Justice Subba Rao in this case acknowledged privacy as a cherished ingredient of personal liberty. But it is still true that till this time it was not made being articulated in the Constitution of India. 

After this, a more comprehensive analysis was done in Gobind v. State of M.P., wherein it was for the first time the Supreme Court in this case while listening on the matter of certain regulations allowing police to search the house of habitual offenders acknowledged privacy under Article 19(1)(a), (d) and 21. But somehow the court was of the view that such searches and seizures are not invalid and hence they come under the ambit of “procedure established by law”. Apart from this, the court in this case held that privacy though a fundamental right is not absolute and subject to some restrictions as per Article 19(5). The court did not dwell much into this concept and thus did not devise any governing policy for privacy and departed from explaining the concept of privacy in detail. The Supreme Court in this case also applied a compelling state interest test. This test was laid down in Maneka Gandhi v. Union of India and provided a thorough mechanism through which a balance can be reached between two competing rights. 

The concept of restriction is different in the US from what we have in India. In India, after this judgment it was recognized that privacy is subject to restrictions pertaining to public interests. But there should not be only public interest but that interest should also be compelling enough to curtail privacy. When the Supreme Court applied this test, it was clear that the restriction on privacy was more than the restrictions mentioned under Article 19(5). Another test which was propounded in American cases was the narrow tailoring test. This test implied that any law which curtails the fundamental right as narrowly as possible is not invalid and thus mere curtailment of fundamental right does not render the law invalid. 

Another leading case relating to privacy was PUCL v. Union of India, The court held that in any case where from the facts privacy has been established, the intrusion can only be done by a procedure established by law therefore indirectly emphasizing that privacy is a part of Article 21 and can only be taken away by “procedure established by law”. However, alike the above mentioned judgment, this court also desisted from giving any uniform and specific definition to privacy. From all the discussions above it was clear that the concept of privacy was growing immensely and came before the court time and again but this doesn’t resulted in specific regime for privacy rather the court desisted from interpreting privacy in detail this is also because of the reason that the in modern era the concept of privacy has become multidimensional as a result of multifaceted nature of life and technology and hence making it difficult for the law makers to develop a comprehensive privacy and regime. 

Years after many judicial pronouncements and controversies surrounding privacy, finally a judgment came popularly known as Puttaswamy case which discussed in detail privacy and its principles. The supreme court by clearing the air held that right to privacy is an intrinsic part of right to life and its extent is not only based on subjective expectation of privacy but also to the uniform objective expectation of privacy (Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.)

Though there is some clarity on the issue but without a comprehensive privacy regime it’s impossible for courts to balance these two rights. As without a policy courts will not have a uniformity or standard to achieve therefore delivering inefficient judgment in each case. Not only courts, citizens will also have no idea about what act is infringement of privacy and what is not as for one an act can be against his privacy and for another it cannot therefore rendering it unclear for people to decide whether he or she should move to the court or not as they themselves will not be clear whether the acts infringe their right or not.

Surveillance in India: Laws and systems

Today whatever to do from going to college, to board a bus, to pay for our food, to sending an email and everything, we leave a trail of data behind us. The government is capable of knowing each and everything that we do in a day and that’s because of the records that we left in behind us while carrying activity and because of some of the data that we ourselves give through signing in whatsapp, facebook and different government payment apps. Mass Surveillance has always been done by the government secretly as well as openly. But this surveillance should also be in conformity with constitutional values meaning that the government should use this power judicially and reasonably. 

Growing technology has however led to the shit in surveillance from target based surveillance to mass surveillance. Mass surveillance is very different from target surveillance while the former allows the government to spy irrespective of any reason or tip, the latter only allows keeping an eye on a group of persons because the government thinks or has suspicion that they are involved in some kind of unlawful activity.

In India we have many legislations supporting surveillance, firstly we have Section 69 and 69B of Information Technology Act, 2000 which relates to the matter of mass web surveillance. It allows the government to intercept, monitor and decrypt in the nation’s interest. For our issue it is important to note that section 69 curtails speech by collecting data from telecommunication service providers as and when they wish to do surveillance. This system allows central government to block certain contents or to take down certain content by ordering service providers to do the same. And hence this section allows the providers to continuously monitor the data and further empowering them to remove any content as per their wish in fear of government. This creates a system of “private censorship” whereby the Indian government can monitor and regulate speech by ordering telecommunication providers.

Section 69B also allows government to direct any telecommunication provider to intercept any communication or information generated in any computer resource. Section 79 further empowers the intermediaries since it immunes them from liability of third party content, if they have used due diligence and followed all regulations. This section also sometimes results into providers getting extra conscious and illegitimately deleting content leading into private censorship and hence fortifying private censorship. The problem lies in the term due diligence which has nowhere been defined in the IT Act and this has been solely left on the discretion of the intermediaries. Intermediaries can sometimes misuse this power or can come under the influence of some other person to delete legitimate content. Thinkers of this act have argued that the term due diligence should not be read in isolation and should be read with 2011 IT rules. Rule 3(2) bars ISPs from hosting “objectionable, hateful, and disparaging, and defamatory” content. Yet the rules do not define any of these terms used. Then what was the point of having such rule and replacing an unexplained term “due diligence” with other four unexplained terms “objectionable, hateful, disparaging and defamatory” and leaving interpretation of these terms on the intermediaries.

Another law which supports surveillance is Indian Telegraph Act, 1885. According to Section 5(2), the central or state government or any officer duly authorized may direct any or pass order to prohibit transmission or to intercept or to detain any message or class of messages in the interest of public safety or in case of public emergency.

Another and most controversial law Aadhar Act which has been upheld by the Supreme Court after many deliberations also empowers the government to do surveillance. Though made for the betterment of the weaker sections and protecting them from corruption prevailing in public distributing schemes. The Aadhar card carrying 12 digit unique identification no is designed so as to give a unique identification no to every citizen so that every citizen gets his due share without any chance of duplication or discrepancy. This act came into limelight because of it being made mandatory by the government. Apart from this, the enrolling agency which enrolls the citizens is a private agency and hence there are our chances the private agency may misuse the data violating the fundamental right to privacy. Moreover, whenever any person uses his aadhaar in a bank or elsewhere, under this system a record of data is maintained including nature of transaction, location, purpose, etc which helps in government for tracking activities of citizens without them knowing. Therefore this act promotes surveillance and while being a mandate for citizens leave them with no option to protect themselves from unwanted surveillance. 

Apart from laws we also have certain organizations which support laws out of them two of them frequently used are Network Traffic Analysis System (NETRA) and  Central Monitoring System (CMS). What matters to our issue is CMS. This system has eliminated the role of all intermediaries. Under this system the government has mandated all the network providers to install a data interception center connected to a central interception centre of government intelligence. To give this system more power, the telecommunication department has mandated   telecommunication providers to grant direct access to the communication to the government. All the communications taking place between citizens will be monitored by the government without asking for anybody’s permission paving a smoother way to prosecute people at their wish.

This system has brought with itself a paradigm shift from “private censorship” to “self-censorship”. Fearful of government, citizens will start censoring their communications and hence the starting of censorship begins right from the citizens which should not be the case in an ideal democracy. This is also known as “chilling effect”. This effect occurs when someone restrains himself from taking any action because of the fear of the consequences that might flow out from that action. The earlier kind of censorship compelled the government to request citizen’s information from service providers, whereas now the government can monitor the communication without even telling the service providers. This is not the end, the power to approve the surveillance lies in the view of top-officials who are already overburdened and may sometimes miss to properly scrutinize any requests received by them resulting in unauthorized surveillance.

Battle between the two competing rights

The right to privacy is implicitly embellished under Article 21 right to life. There are several situations in which the public safety and security is paramount and can be served only by abridging privacy. However the interests that are aimed must be such an interest that it would justify violation of privacy. Therefore, privacy just like any other right has to give away when the question is of the nation’s interests. But on the other hand there should be a balance between the two competing rights that is right to privacy and right of surveillance ensuring that in this process of reaching equilibrium each right has the same weight, measure and importance.

The most important consideration is that the balance should be reached in such a manner that it should promote maximum public interests. In this context, the apex court while deliberating on the issue of two competing rights that is privacy and health in the case X v. Hospital Z held that in case of a tussle between these two rights, the right which is more directed towards public safety and interest should prevail over other rights. And hence, in this case right to health prevailed over right to privacy. 

The problem rose when every judge placed his own meaning to the term “public interest” while deciding on a matter. Therefore to attain uniformity the Supreme Court defined the term in the case of Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal.The court held that though the term has nowhere been defined or used in the language of the constitution but the several grounds mentioned in Article 19(2) ultimately refers to the nation’s interests.

Another way of reaching a balance could be applying a compelling state interests test laid down in Maneka Gandhi v. Union of India which has already been dealt with in this paper.

Apart from this proportionality test which has emanated in English cases can be a better test in giving satisfying results in case of conflict between two rights. The term proportionality can be understood by reading the dictum given by Sir John Laws in the case of R v. Goldstein. (Taneja and Kumar) He said that proportionality is all about giving relative importance to the facts of the case and then prioritizing them. Therefore the whole focus is on the facts of each case concerning conflict between two rights and intrusion of one right should be justified on an objective basis. Classic example of proportionality being applied by Indian judges is the aadhaar verdict. The case concerned conflict between two rights namely right to privacy and right to food and shelter. The court held that proportionality has four stages. Firstly, an aim of the state. Secondly, a series of possible alternative measures. Thirdly, selecting a least restrictive measure and lastly, a balance between infringement of rights and the overall public welfare. The court held that since the aim of that state was to supply benefits to weaker sections efficiently, the aadhaar being a unique measure to facilitate such aim by violating privacy least and there being no alternative measure possible, the aadhaar successfully passed the proportionality test.

Another test which could be used is a necessity test. Under this test the manner and degree of intrusion is measured and checked that the intrusion even if justified does not go beyond what is necessary to achieve the aim sought. If we apply this test to the present CMS system, the intrusion that is being done by the government through CMS is far beyond what is necessary to accomplish the aim of the government. The ultimate aim of the government is to keep an eye on the unlawful activities carried by some people who are threatening the security of the nation and to do this the government has installed CMS which can enable the government to do interception of each and every communication taking place between citizens of this country. These citizens though include government targets but there are innocents also who are being intercepted by the government. This mass surveillance and not a target base surveillance are far beyond the necessity of the government as innocents have to compromise with their privacy unnecessarily and without their fault. Hence the CMS does not pass the necessity test.

Therefore in light of the above discussion it is clear that though privacy can be taken away in the nation’s interest the components should be weighed properly by applying any of the tests above mentioned, so as to secure the ends of justice.

Conclusion

Right to privacy was recognized after so many years and numerous judgments. However, in terms of its extent, a clear picture has yet to emerge. India is a democratic republic, and this right is consequently derived from the Constitution itself. Right to privacy is not only implicit in Article 21, but also constitutes the backbone. If there is no privacy then how is it possible to recognize personal freedom? Government`s unrestricted power established under CMS will have suspicion on each and every citizen and hence making citizens fearful all the time of governments’ surveillance. But we should not forget that this is how democracies convert into oligarchy where citizens are most of the time unaware about the steps taken by the government or have no right to question them. Thus an interface between government and citizens should be there to solve this problem. There is also a need for a comprehensive privacy regime to understand the scope and extent of multi- dimensional privacy in the modern era. This will help in establishing further restrictions, legal position and implication of privacy. 

References

• Taneja, Rishika and Siddhant Kumar. Privacy Law. Lucknow: Eastern Book Company, 2014.
• Litton, Addison. “The State of Surveillance in India: The Central Monitoring System`s Chilling Effect on Self-Expression.” Wash. U. Global Stud. L. Rev. (2015): 799-822.

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