This post has been written by Kabeer Kalwani, a first year law student from Hidayatullah National Law University, Raipur.
After the global surveillance disclosures of 2013 through the top secret documents leaked by Edward Snowden , an ex-contractor of the US security agency NSA , it became very clear to everyone that in this digital era what capabilities can the government have to keep an eye upon everyone for national security.
It told us how the web giants like Google and Facebook provide the information to the intelligence agencies. And it was not only for the citizens of USA but for all the countries which have access to the internet to gather information without the knowledge of either the citizens or the judiciary. This means that if we are connected to the internet then our information will be vulnerable to be hacked by the statutory authority or any other organization ,since then the debate upon this practice of surveillance by the government for national interest have spread across the world like a forest fire.
People generally don’t care about the threats to their privacy as long as it’s underground. But they should be informed about the authorities who have the access to their activities and other documents, and to know that whether or not it’s a threat to their private life. According to the Indian constitution Right to Privacy is an integral part of the article 21 (namely Right to Life). That’s why when government tried to make it mandatory to link the SIM card, PAN card etc to the aadhar card which is a biometric identification for every citizen, it had to face a serious backlash from the jurists across the country. This step will not only help for the intelligence purposes to provide better security but will also help in spotting the stocks of black money. But it may result into serious risk for the security of personal data, which may come in the hands of the hackers or even the political parties who may gain from it illegally .Some are calling it the biggest surveillance engine in the world .The debate is still going on about whether it is constitutional to compromise the privacy of the citizens for national interest or not. Since though the security of the nation is the utmost priority of the state , but at the cost of the fundamental rights of the citizens makes it lesser justifiable.
The Modi government has already shown its priorities. That’s why the chances are very high that later on in its term, Modi government will take more steps towards surveillance in the name of “national interest”. That’s why it’s the high time to discuss the constitutionality of the acts like these.
RIGHT TO PRIVACY
Privacy means “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned”.
The modern privacy benchmark is declared in the 1948 Universal Declaration of Human Rights, which under Article 12 specifically states that:”No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks.”
Earlier in India right to privacy was not specifically referenced in the Constitution, but it was said to be a ‘penumbral right’ under the Constitution, i.e. a right that has been declared by the Supreme Court as integral to the fundamental right to life and liberty. Right to privacy has been culled by Supreme Court from Art. 21 and several other provisions of the constitution read with the Directive Principles of State Policy. Although no single statute directly confers this right but; different statutes are there which contain provisions that either implicitly or explicitly preserve this right.
NEED OF SURVEILLENCE
John Locke in his earlier work has said that people come together to form a social contract and give some of their rights to the sovereign for security so sometimes the government has to violate upon those rights in order to protect us, because security always remains the most important duty of the government.
Surveillance is a mechanism of secretly watching the activities of the suspect. In earlier times this was done by following them and looking into their trash which is not possible every now and then. These days the mechanism is mostly electronic, with the police and intelligence agencies looking into their mails or listening to the phone conversations or checking into their bank transactions & deposits.
There are many loopholes in the judicial system as it is observed that people possess black money through various illegal sources without any fear of being caught, Adhaar card linking mandate can curb this problem if executed properly.
It is observed that the criminals get acquitted just because of the lack of sufficient evidence, with surveillance cameras in all the public areas and hi-tech devices to the police will help for sure.
Also in recent years it is observed that terrorist activities has expanded exponentially in our nation which claims thousands of lives yearly and many other acts which could’ve been prevented if the authorities had been more vigilant, because at the end the state is responsible for betterment of the society. According to many researches India is one of the most dangerous countries to live on Earth. The government cannot just stand and wait until the attack is done it must prevent it from happening.
SURVEILLENCE: A THREAT TO INDIVIDUAL’S PRIVACY
As mentioned earlier we are living in an era of mass surveillance. The CIA and NSA keep doing surveillance upon every person in the world through major networking sites. At the same time, our government is also conducting surveillance in the name of national interest. Citizens are now becoming more aware of their privacy rights and have not accepted loss of privacy in return of national security. As a result the surveillance regime proposed by the government has failed to gain public support.
Privacy means the autonomy of an individual that’s why it is feared that this step may lead the system to be more like fascist and communist. Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
There is a fear that the government may misuse their power. It may access any personal data of the individual which even may not be needed and it may not even give explanation to anyone or any reason to access and use the data for the personal interest of the people in power or political party. Government’s use of tools like phone tapping, access to all the mails and bank accounts leads to a serious invasion of individual’s privacy.
The right to privacy evolved from the case of Kharak Singh v. State of UP, wherein the court equated the privacy with right to life and personal liberty. At present on 24th august 2017 a nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution.
So it becomes very clear that privacy is one of the most important basic human rights, especially when we talk about the right to life with dignity. And no matter what, this right must never be upheld by government or any other organization unconstitutionally, but when we talk about benefit of the society at large or national interest these rights come in the ways to provide better security and justice.
As Bentham said that a sovereign should always keep in mind the about “The greatest good for the greatest number” ,similarly as observed earlier that the surveillance is can be done for the benefit of the whole nation which helps in providing better security from external and internal threats, better judgments by the judiciary, better economy, etc.
But along with that we must also consider that there can be many loopholes in this process through which the people who are in power can misuse the information for their own benefit. But these problems can be solved by some measures like, appointing a new agency for the purpose of surveillance under which different authorities will be given different tasks (i.e. security, tax evasion etc) under the boundaries of which they can exercise their power to gather information and provide it to the other authorities when it’s needed. And there should also be a different court to oversee requests for surveillance warrants and also penalize the misuse of the power of surveillance by the people in the agency or any other authority (like United States Foreign Intelligence Surveillance Court) which would make this act more constitutional and justifiable.
So the conclusion here comes out to be that surveillance like mentioned can at times be hazardous, but it can be solved through some measures. And if a little compromise in the privacy of the citizens can bring them better security and justice in return then according to us they
should allow it ,but only if the authorities prove themselves foolproof and secure. And if we aren’t guilty of doing anything wrong then we have nothing to be afraid of from surveillance.
And for adhaar card mandate issue the Supreme Court is still sub-judice . But on our view this step may be decision made in haste. As before doing all this other authorities should first be ready for the implementation which may cause to another failure like demonetization.