In the year 2017, The Supreme court of India ruled the landmark judgement saying that the privacy is the fundamental rights of the people. By this judgement, there are celebrations and enjoyment among the people of India all over the nation. After that, the same court changed its character completely during the Aadhar Judgement in the year 2018 which allowed the Aadhar-PAN linkage and declared that the unique codes to be used for the upcoming government schemes and subsidies. The segment of people that do not pay tax and do not avail any government subsidy is left out. After this judgement, the government is expected to go in a different direction by taking steps to curtail the liberties of citizens in the name of surveillance and national security.
NATIONAL SECURITY AND SURVEILLANCE:
As the Supreme court gave rights to the ten agencies to do whatever they wanted to do, the fear of people is the biggest threat to the democracy at large. With this kind of surveillance being encouraged by the system, India will lead to the future where the lowest level of bureaucrats can also access the private information of everyone virtually. The constitution of India guarantees every citizen the right to life and personal liberty under the Article 21.
In the case of K.S. Puttaswamy v. Union of India (2017), The justice ruled that the privacy is fundamental right. But This is not absolute because, whenever there is a threat to national security or other issues to the nation or its states, By the Information Technology Act, the government have the right to decrypt and monitor the internet traffic or the internet data that is being transferred or received.
RIGHT TO PRIVACY:
The ministry of Home Affairs issued an order in 2019 to ten central agencies like Delhi Commissioner of Police, CBI and directorate of Revenue intelligence to pry on personal computers and their transactions under the sub-section 1 of Section 69 of Information Technology Act, 2000, with Rule 4 of Information Technology rules (procedure and safeguards for interception, decryption and monitoring of information), 2009
Also, the CBI and Delhi police cannot be termed as organizations as they are concerned with the national security. The sole fascination of this government seems to be the collection of Data. With the thirst of information and the state governments are set on a surveillance race which makes India as a police state. These steps taken by the central government and the Supreme court seems to be denying the right to privacy which is termed as fundamental right of the people.
RIGHT TO PRIVACY IS NOT ABSOLUTE:
In modern times, the fake news, and illegal activities such as cyber bullying, cyber terrorism on the dark web are on the rise. This makes the government to monitor and decrypt the information over the internet. There must be some evidence to initiate or seek approval for interception by state authorities. This is the same position in the United States, any action without such evidence would be struck in the courts as invasion of ones right to privacy. So, the framework of the prescribed procedure needs to be implemented in such a way that needs conformance in both letter and spirit. Those ethical and legal parameters set by law would be tantamount toa deliberate invasion of citizen’s privacy and make India as a surveillance state.
The government launched the AADHAR in the year 2010. Aadhar was introduced as the universal identification document for the citizen of India. They scanned the eyes, handprint of both hands and collected the personal information like the contact number and the residence address of all individuals. These are stored virtually in the government servers of India. This step of the government was well appreciated by the social activists and the Indian citizens.
But in the year 2015, the unknown agencies from other nation hacked the database and leaked out the personal information of the citizens. This was heavily criticized by several social activists. This shows that the quality of security of the servers was not well maintained. This is the problem lying with the government. They always try to cut the cost in all possible ways. In other nations, government database servers and military servers are the best servers even while we compare it with the billion-dollar multinational companies. But in India, they are not same. After some months, the government officially revealed that only the data that is printed in the cards has been hacked and no personal information is leaked. This kind of activities act as the major threat to the government as well as the citizens
Over the past decade, we had witnessed too many legal interventions that comprise the highly contentious terrain of surveillance in cyber world. The amendment made to section 69 of information act in 2008 that expanded the government power of interception. Recent proposal to amend the intermediary rules od 2011 has been justified to trace the “originator” of the fake/unlawful information in news epidemic. The Indian government claimed that social media and internet has bought the new challenges of the enforcement agencies, including circulation of obscene content, spreading of disharmony and incitement of violence and humiliating the Indian people to trace the individual.
WHAT GOVERNMENT SHOULD DO?
Government should aim in the providing the privacy to its citizens by not compromising the national security. National security is the most important aspect to government. The government need to increase the accountability and responsibility in exercising the surveillance powers. By the recent orders passed by the central government is within the ambit of its powers under section 69 of the information technology act. The present implementation of the intermediary rules of 2011 must be tested on the grounds of reasonableness, fairness, proportionality, and exercise of the powers of the agencies. the important aspect of the government is that the individual even if their electronic communications are being intercepted or monitored by the middlemen. If such surveillance takes place at their knowledge, they can know the reason for such surveillance. This can make the surveillance provision agencies to misuse the powers issued.
Thus, the role of the review committee is quite significant. Only ten agencies are given special powers to intervene in the electronic transaction of mails and payments. In the case of People’s Union for Civil Liberties v. Union of India (1996), the supreme court had set rules for the judicious exercise of surveillance and interception is phone tapping cases. This should also be used in the cyber world.
Trends in the surveillance powers point to an obvious tension that the scale of communication activity and its private architecture represent for state agencies. To bring justice for the gender-based violence, the police departments should do what may be necessary to trace the offender. In the absence of legislative oversight, such powers result not only in the restriction on individual fundamental right but also have far-reaching consequences for other freedoms- a chilling effect on the freedom of speech. The cybersecurity experts caution that it is not possible to decrypt the information via back-door to target individual and in such case of encryption can compromise security for all. The digital government requires to rethink on the rule of law, the very basis upon which the connection between constitutional principles and legal norms tied together. A new legal framework for surveillance should be formed.
TEST OF PROPORTIONALITY:
All the measures within the framework must pass the test of proportionality specified by the right to privacy judgement. The government framing the new framework must also account for how digital technologies are implied in the problems of opacity and characterizes the rules and regulations of surveillance. Intermediate agencies must be mandatorily located their servers in the Indian territory. The rules for digital evidence collection must be specific to technological applications. The centers attempt to tinker with the intermediary rules might suggest a safety door approach with little thinking on how the social and technology will impede the fall of rights and make robust democracy.
Privacy seems intuitive too most people, its legal codification and protection is complex. Just because the expectations of privacy existing different social contexts which demand different forms and different degrees of protection. Also, the growing domestic constituency that is alarmed by the state’s collection of the sensitive information and personal data without any safeguards. The recent debates on privacy focus only on the surveillance and data protection. The colonial law permit and regulates the wiretaps in India. However, the recent government’s push for privacy law does not stem from surveillance concerns but from international commerce in the form of personal data.
Author: SriKanth R,
2nd Semester | BBA LLB | IFIM LAW SCHOOL, BANGALORE.