Open Access Research Article
SURVEILLANCE VIS-À-VIS RIGHT TO PRIVACY IN INDIA
Published Paper
Article Details
SURVEILLANCE VIS-À-VIS RIGHT TO PRIVACY IN INDIA
AUTHORED BY
- RAHUL RAMCHANDRAN
ABSTRACT
The act of
surveillance involves observing or monitoring individuals, groups, or
organizations and can be conducted by governments, private entities, or individuals.
The reasons for surveillance may vary, such as for national security, law
enforcement, or corporate espionage. However, this practice can sometimes lead
to the violation of one’s right to privacy. The Constitution of India
safeguards the right to privacy in Article 21, which asserts that no individual
can be stripped of their personal liberty or life unless done so through the
proper legal procedures. This provision serves as a cornerstone of the Indian
legal system, ensuring that citizens are protected from unwarranted intrusions
into their private lives. The use of technology for surveillance purposes has
brought about much debate in recent years in India. The government has
implemented various surveillance measures, including CCTV cameras in public
places and electronic communication interception, in the name of maintaining
law and order and national security. However, such measures have been
criticized for infringing upon citizens' right to privacy. In 2017, the Indian
Supreme Court ruled that privacy is a fundamental right and any interference
with it must be justified by a compelling state interest and must be
proportionate. Additionally, the government has been criticized for a lack of
transparency and accountability in its surveillance activities. It is necessary
to establish a strong legal framework to regulate surveillance activities in
India and proper oversight mechanisms to ensure that such activities abide by
the law and do not violate citizens’ right to privacy.
Keywords: Surveillance, Right to Privacy,
Article 21, Technology, Violation
TABLE OF CONTENT
CHAPTER I: INTRODUCTION
·
Background………………………………………………………
·
Research Problem.………..………………………………………
·
Literature Review…………………………………………………
·
Scope and Objective…………………………………………........
·
Research Questions……..……………………………...………….
·
Hypothesis………………..………………………..………………
CHAPTER II: CONCEPT OF SURVEILLANCE
·
Introduction Surveillance and Indian law regime………………….
CHAPTER III: THE IMPORTANCE OF PRIVACY
·
Legal Protection of Privacy Rights in India…..…..…………………..
·
Stance of Indian Constitution on Surveillance and
Privacy…………..
·
Road Ahead…….…..…………………...………….…..…………..…..
CHAPTER IV: CONCLUSION AND SUGGESTION
·
Suggestion…..…………..………………….………….……..……
·
Conclusion…………………………………………………………
BIBLIOGRAPHY…..…………..…………..……………...…………..…
·
BACKGROUND:
In the
digital era, the debate over monitoring and the right to privacy has taken on
more importance. Concerns regarding the preservation of personal privacy have
been raised as a result of the development of technology and the widespread use
of digital communication platforms, which have made it possible for both public
and private entities to engage in various types of monitoring. A fundamental
human right, the right to privacy is one that is recognised by several
international and state law systems. It covers the freedom from unjustified
interference with one's private life, which includes private communications,
actions, and data. However, the conventional definitions of privacy have been
put to the test by the development of surveillance technology.
·
RESEARCH PROBLEM
Surveillance has the potential to
infringe upon an individual’s right to privacy by gathering their personal
information without their permission, monitoring their whereabouts, and observing
their online behaviour. It can also be utilized to restrict and suppress
freedom of speech or influence public sentiment. Additionally, it opens the
door to prejudicial treatment and the possibility of those in power abusing
their authority.
·
LITERATURE REVIEW
1). Anubhav Khamroi and Anujay
Shrivastava, Scrutinizing the Applied
Implications of a Right to Privacy: State Surveillance And Constitution, 2019.
The paper examined several
cases where the right to privacy and state surveillance have come into
conflict, including the Aadhaar card scheme and the use of surveillance
technologies like CCTV cameras and facial recognition. The authors argued that
there needs to be a balance between the right to privacy and the needs of the
state and that the Constitution provides for this balance through its restrictions
on the right to privacy. It also discussed the role of the judiciary in
protecting the right to privacy and ensuring that state surveillance is carried
out in a manner that is consistent with the Constitution. The authors noted
that the use of technology has made it easier for the state to carry out
surveillance and call for greater regulation of this use to ensure that it is
consistent with the right to privacy. The paper concluded by arguing that the
right to privacy is an essential right that must be protected as well as
balanced against the needs of the state.
2). Dr. G. Mallikarjun and B.
Md. Irfan, Right to Privacy in India: The Technical And Legal Framework,
2022.
This article states that the
largest drawback of Article 21’s right to privacy is that both the text and its
legal interpretation are inherently in disagreement with how privacy issues are
typically discussed. It further adds
that in today’s society, privacy continues to be portrayed as a private,
communal, or human right that states must defend, unless there are serious
threats to national security. It continues with the fact that the right to
privacy vs security dilemma can be such a type that governments often get away
with compromising the privacy of their citizens under the guise of “national
interest”.
3). Sangeeta Mahapatra,
Digital Surveillance and the Threat to Civil Liberties in India, 03 May 2021.
The paper discussed how
digital surveillance technologies, such as CCTV cameras, social media
monitoring, and facial recognition, have become pervasive in India and can
potentially infringe upon individual privacy rights. The author examined the
current legal framework for surveillance in India and the role of the judiciary
in protecting civil liberties. The author also discussed how surveillance can
be used to stifle dissent and undermine democratic values. The paper concluded
by calling for greater public awareness about the potential impact of digital
surveillance on civil liberties and the need for greater accountability and
transparency in the use of these technologies by the state.
4). The State
of Surveillance in India: The Central Monitoring System’s Chilling E s Chilling
Effect on Self-Expr ect on Self-Expression by Addison Litton, 2015.
In the
interest of expounding upon the ongoing dialogue surrounding governmental
surveillance, particularly in the Indian realm, this writing endeavors to posit
an argument concerning the Central Surveillance Systems (or better known as
"CMS"), which at its core, poses an unmistakable and impending danger
to both privacy and the democratic tenets of free expression. With this in
mind, this exposé aims to detail how this very CMS could potentially usher in
an entirely new era with respect to regulating language within the Indian borders,
shifting away from the status quo of "private censorship" and towards
an alarming increase in self-censorship among the nation's telecommunications
providers, thus leading to widespread suppression of civilian speech under the
pernicious regime of the CMS.
5). Policy
Recommendations for Surveillance Law in India and an Analysis of Legal
Provisions on Surveillance in India and the Necessary & Proportionate
Principles - By Maria Xynou, 2015.
In the opus at hand,
the writer posits that the Indian government - by means of its sundry
regulations and service provider licensing agreements - has put in place a
legal architecture which buttresses the authorities in executing surveillance
endeavours. The Center for Internet and Society (CIS) concedes that surveillance,
when executed lawfully, legitimately and in a targeted manner can be a salutary
weapon in advancing the cause of law enforcement, particularly in the battle
against criminality and terrorism. However, in certain cases, existing laws and
licensing agreements in India manifestly put a strain on the capacity of the
government to engage in surveillance, while yoking up individuals' rights to
enjoy confidentiality and to have their data protected.
6). The
Digital Person: Technology and Privacy in the Information Age Daniel J. Solove,
October 1, 2004
It is
beyond dispute that the advancements in technology have indubitably shifted our
perception of privacy. The antiquated notions we had are no longer efficacious
in dealing with the exigencies brought on by the rapid digitalization of the
world. The legal framework that governs our privacy is couched in these
outmoded concepts and has proven it impotent in the face of the surging privacy
concerns stemming from digital dossiers. However, this book seeks to upend the
established paradigms of our understanding of privacy and reimagines the very
foundation of privacy to cope with the unprecedented challenges of our
existence in the unprecedented Information Age.
7). Privacy,
free expression and transparency Redefining their new boundaries in the digital
ageJoseph Mifsud BonniciEvgeni Moyakine, 2016
The
study examines and decodes several complex issues. In particular, this study
examines the complex relationship between the right to freedom of expression
(including the right to access information), transparency, and Internet
privacy. The study examines the limits of these rights and explores different
ways of harmonizing and unifying them. The study analyses the legal framework,
current legal settlement mechanisms as well as specific issues, cases and
trends. As research has shown, standard laws and regulations to protect privacy
and free speech often rely on addressing digital issues. Furthermore, the study
covers interactions between multiple stakeholders, including government
agencies, ICT companies, Internet users, civil society organizations, the judiciary,
and security services. The study recommends different policies to address key
issues and different stakeholders.
8).
Alan
F. Westin, Privacy And Freedom, March, 1967.
Ellen
Westin's "Privacy and Freedom" provides a detailed and comprehensive
analysis of the conflict between privacy and surveillance in modern society.
Prepared under the auspices of the Special Committee on Science and Law of the
New York City Bar Association, with funding from the Carnegie Corporation, this
book will undoubtedly be considered an essential reference on this topic. The
book is divided into four parts: (1) the role of privacy in society; (2) a
description of technological advances in surveillance; (3) the response of
American society to the introduction of these new technologies; (4) an
assessment of the past of American law in this area. and future effects. In the
first of these sections, the authors introduce the social value of privacy, an
approach conspicuously lacking in other surveillance works.
9).
A Typology of Privacy by BERT-JAAP KOOPS, June, 2017
According
to the authors by utilizing a two-dimensional model, we are able to categorize
various types of privacy into eight distinct categories, including bodily,
intellectual, spatial, decisional, communicational, associational, proprietary,
and behavioural privacy. This model also includes a ninth category,
informational privacy, which intersects with the other eight but is not
identical to them. The scope and comprehensiveness of this analysis make it a
significant contribution to the theoretical literature on privacy. Our typology
is a valuable tool for analysing and understanding the nature of privacy, its
relationship to the right to privacy, and how this right varies and corresponds
across different countries. It is important to note that privacy cannot be
reduced to informational privacy alone.
10).
The “Criminal Tribe” and Independence: Partition, Decolonisation, and
the State in India's Punjab, 1910s-1980s Sarah Eleanor Gandee, August, 2018.
The
author in the article has contended that with no central watchdog, tribal
surveillance is part of day-to-day police management. The system had an
inevitable flaw in that while there were severe penalties for breaking the law,
there were few opportunities for reform for those tribe members who were
genuinely interested in living an honest life.
·
SCOPE
AND OBJECTIVES
This research paper aims to analyse
the history and origin of privacy in India. This research paper includes the
importance of surveillance in India. It discusses the statues and laws
applicable to surveillance in India. It also talks about the infamous
Puttaswamy judgment with regards to right to privacy. This paper also covers
various cases where the Courts have pressed on the importance of such a right.
It looks into how surveillance is affecting the right to privacy of the people
in India.
·
METHODOLOGY
The research has doctrinal method of
research, relevant reference from various literature, committee reports, precedents,
journals & books are cited.
·
RESEARCH QUESTIONS
What are
the laws governing surveillance in India, and how far has such surveillance had a negative effect on
the right to privacy?
·
HYPOTHESIS
Right to Privacy is not protected in
India due to Surveillance.
CHAPTER II: CONCEPT OF SURVEILLANCE
·
SURVEILLANCE AND INDIAN LAW REGIME
Surveillance refers to the act of a third-party
monitoring, collecting, or intercepting an individual's data. With the rise in
technology and the increasing number of people using telecommunication and the
internet in India, there is a greater likelihood that personal and confidential
data can be shared through these means without knowledge of a third-party
interceptor. To prevent this, India has implemented legislation to regulate the
surveillance of calls and websites. While strict surveillance can be useful in
monitoring national security and criminal activity, only certain authorized
departments and individuals are permitted to monitor and intercept data, and
their reasons must align with the clauses outlined in the legislation. The
right to privacy is a fundamental human right, and the Indian Constitution
recognizes and upholds this principle for all its citizens. By safeguarding the
right to privacy, the Indian legal system ensures that individuals can live
their lives free from unnecessary interference and intrusion. This protection
is crucial for maintaining the dignity and autonomy of citizens and upholding
the values of democracy and justice.
The profound author David Lyon has
expressed his belief in the intricate world of surveillance, positing that it
encompasses the relentless monitoring of individuals' behaviours, activities,
and other dynamic and mutable information, all for the purpose of furthering a
given objective, whether it be exerting influence, managing scenarios,
directing actions, or safeguarding individuals' safety and security. The Indian
Constitution, which is imbued with a profound and ennobling sense of purpose,
invests the Parliament with the authority to promulgate laws concerning
surveillance while also ensuring that the fundamental rights of individuals are
scrupulously upheld and protected.
India, a nation of diverse and
multifarious people and beliefs, has promulgated manifold laws on the subject
of surveillance. According to the wise and insightful words of David Lyon, the
usage of surveillance entails the meticulous observation of the behaviour,
activities, or other constantly shifting data of individuals in order to
influence, manage, direct, or even safeguard them.[1] As
such, the implementation of surveillance by the government enables the
authorities to sustain and protect the lives, as well as the liberties of the
people. It is within the holy grail of the Indian Constitution that the
Parliament is bestowed with the power to construct laws pertaining to
surveillance and its associated matters while concurrently ensuring that the
fundamental rights of the individuals are safeguarded and upheld.
Throughout the annals of history, the
autocratic authoritarians have been notorious for employing various forms of
surveillance to quell their animus, and to oppress and reprimand their
political adversaries, dissidents[2].
Under British colonialism, individuals of certain denominations were deemed
perilous and perceived as inherently criminal due to their birth, beliefs and
castes, thereby rendering the tribes to which they belonged as criminal
syndicates. In the quest to regulate and monitor the behaviour of this
marginalized segment, the British colonisers passed the Criminal Tribes Act in
1871, whereby 150 castes were designated as "hereditary criminals"
and subjected to policing scrutiny.[3] The
purview of this list was comprehensive, encapsulating any individual who was
suspected of vocalizing their dissent against the British regime. Under the
statute of 1871, the law enforcement agencies possessed boundless discretionary
powers to apprehend anyone at their whim and desire, all in the name of
maintaining law and order in the society. The suspects' names, fingerprints,
and other personal details were meticulously recorded to enable the authorities
to vigilantly monitor their every move. If the current welfare state happens to
misappropriate the methods of surveillance to satiate their own ulterior
political motives, thereby targeting and persecuting political dissenters, it
would not be remiss to aver that such professed "welfare governments"
bear a striking resemblance to their totalitarian and authoritarian
counterparts.[4]
CHAPTER III: THE IMPORTANCE OF
PRIVACY
Privacy is an essential facet of
human existence because it fulfils both external and internal aspects of an
individual's being. It safeguards the freedom of speech and opinion, as well as
the right to hold any ideas, express dissent, associate with others, and remain
anonymous. Additionally, privacy safeguards the self-determination of
individuals regarding their personal choices, including decisions related to
marriage, parenthood, childlessness, and sexual orientation. Alan F. Westin
posits that privacy serves four functions in democratic societies: personal
autonomy, emotional liberation, self-assessment, and limited and protected
communication. Westin defines privacy as the right of individuals, groups, or
institutions to regulate the sharing of information about themselves with
others, including when, how, and to what extent. However, privacy also has
implications for society, which may inhibit certain individual behaviours that
are conducive to societal well-being.
Solove argued that privacy serves to
enrich social interaction in numerous ways. The absence of privacy, he claims,
would result in a suffocating society. When Privacy is not upheld, the
consequences of improper observation on human behaviour are catastrophic and
far-reaching. Overwhelming surveillance can even have severe psychological
repercussions.[5]
·
LEGAL PROTECTION OF PRIVACY RIGHTS IN INDIA
The central or state governments, along
with authorized officials, have been granted the power to intercept
communications in India by the Telegraph Act of 1885. This authority has been
given to ensure the preservation of India's sovereignty and integrity, national
security, friendly relations with foreign countries, public order, or to
prevent incitement to commit a crime. The power to intercept communications,
however, is not without limitations. The Indian Telegraph Rules of 1951,
Section 419A specifically, provides procedural safeguards against telephone
tapping.
The Information Technology Act 2000
grants law enforcement authorities the power to intercept computer
communication in cases where it is deemed necessary for the integrity of
India's sovereignty, national security, friendly foreign relations, public
order, or in situations that may incite a preventable and identifiable crime. The
agencies hold the authority to force intermediaries or any individual to comply
with their requests for such intentions.
The responsibility of overseeing
computer resources to aid in message decryption lies with designated personnel.
Nonetheless, the Information Technology Act is not comprehensive in its
coverage. While it safeguards personal data stored electronically to a limited
extent, there are no provisions in place to protect the data which may be in
possession of private entities. This lack of regulations extends to all forms
of personal data.
The highest authority that oversees
the legal system in India is the Constitution of India. This document outlines
the basic principles that regulate the country's political structure, along
with the privileges and obligations of its inhabitants. It was formally
accepted on November 26, 1949, and put into operation on January 26, 1950.
Moreover, it is the lengthiest written constitution worldwide, with a total of
448 articles and 12 schedules included in its contents.
These principles include the
preservation of individual liberties, the protection of fundamental human
rights, and the promotion of social justice. When exercising its powers, the
State must ensure that it is not violating the Constitution or infringing on
the rights of its citizens. It is the responsibility of the State to uphold the
Constitution and act in the best interests of its people.[6]
CHAPTER III: INDIAN CONSTITUTION ON
SURVEILLANCE AND PRIVACY
·
INDIAN CONSTITUTION AND SURVEILLANCE:
The Preamble of the Indian
Constitution refers to any form of limitation that impedes an individual's
autonomy and independence. Securing the dignity of every individual and
ensuring justice, liberty, and equality of status are undeniably integral
aspects of any functional society. It is possible to ensure that every
individual has equal access to opportunities in India. This is why the Indian
Constitution outlines the importance of providing equal opportunities to all
its citizens. By granting people the freedom to think, speak, and act as they
choose, it becomes possible to guarantee that everyone has the same chances in
life. This includes the right to express oneself without fear of retribution,
and to pursue one's goals and dreams without discrimination. By securing these
fundamental rights, India can create a society that is fair, just, and
equitable for all its citizens. The Preamble acknowledges the personal autonomy
and self-respect of individuals in matters of belief, faith, and worship.[7] The
fundamental rights enshrined in Articles 14 (Equality), 19 (Freedom), and 21
(Right to Life) constitute the pillars of a just and fair society. The Indian
Constitution's Article on Personal Liberty serves as a safeguard for protecting
the basic rights and freedoms of individuals. The Honourable Supreme Court of
India has consistently upheld the idea that administrative authorities must
adhere to the concept of "fairness" in all their actions. This
includes utilizing principles of review to evaluate discretionary and arbitrary
powers.
The protection of an individual’s
right allowing an individual to develop their inner and outer selves. The
Indian judiciary, acknowledging the sanctity of Human Rights, has taken a
liberal stance in interpreting this concept. As such, the fundamental right to
privacy has been included within the scope of personal liberty.
In Kharak Singh v UP State[8],
applicant was allegedly harassed by night-time police home visits. The Apex
Court ruled that the home visits violated the right to life and personal
liberty enshrined in Article 21 of the Constitution. In another case, Govind v.
Congressman,[9] Mathew,
J., further enacted the privacy law. In this case, it's also about home visits.
The Supreme Court held that claims of privacy protections should be carefully considered
and should be rejected only when there is evidence of a significant conflict of
interest. If a court finds that a recognized right is entitled to protection as
a fundamental right to privacy, laws violating that right must satisfy the
paramount test of the national interest. The honourable Supreme Court of India
rules again in Malak Singh v State of Punjab[10]
case, while surveillance, Police should not be dealing with so-called bad
characters, repeat offenders and would-be offender’s violation of citizens'
privacy. Indian judiciary considers
phone hacking a serious breach of privacy.
A case addressing privacy concerns is
K.S. Puttaswamy v Union of India[11],
Its landmark Supreme Court decision stated, the right to privacy is at the core
of the fundamental rights guaranteed by Articles 14, 15, and 21 of the
Constitution. Everyone in society, regardless of social class or economic
status, enjoys the autonomy to protect privacy right. Privacy as a fundamental
and central feature of life and personal freedom enables individuals to stand
up. Therefore, under section 5(2) of the Telegraph Act, 1885 telephone tapping
would violate an individual's right to privacy unless permitted by due process
under the law. To this end, courts have established certain guidelines to
regulate government wiretapping.
In Selvi v State of Karnataka[12],
the Supreme Court held that the compulsory use of any technique, such as anaesthesia
analysis, polygraph examination and BEAP (Brain Electrical Activation Profile)
testing, constituted an undue Recognize that forcible intrusion into a person's
mental processes is also an attack on human dignity and freedom, often with
serious and long-term consequences.
The resplendent and eminent Supreme
Court of India, in its esteemed wisdom, has rendered a profound judgement
deeming that Section 66A of the Information Technology Act, which addresses
online offensive speech, is unconstitutional, as it endows law enforcement
agencies with copious quantities of unlimited power to thwart offensive online
speech. The sacrosanct year of 2015 saw a spirited debate ensue with the Indian
government arguing in favour of the concept that the right to privacy was not
an intrinsic aspect of India's fundamental right to life and personal liberty,
as judgments recognizing India's fundamental right to privacy were made by mere
lower courts and not by the revered and elevated higher courts. The infallible
Supreme Court of India, having been gravely perturbed by this confounding
issue, ordered the privacy issue to be referred to a larger court as the topic
was one of pressing national importance. The government, in response, conveyed
with great urgency that the former judgments denying fundamental privacy rights
were handed down by eight and seven judges, respectively. The court took a
precautionary measure by also mandating the issuance of Aadhar cards, which
served to provide a unique identification number that was not legally required.
It is with great anticipation that the entire case is presently before the
Supreme Court awaiting their esteemed verdict. However, it is important to note
that despite the Indian Constitution empowering the Center to formulate privacy
and data protection laws in the course of constitutional acknowledgment of the
right to privacy, the jurisdiction is specifically conferred under Section
246(1) of the Indian Constitution. To this effect, Parliament has the power to
legislate on matters listed in Schedule I of the Seventh Schedule to the
Constitution. Despite list I being devoid of any entries on data protection
laws or data protection laws, entry 97 provides Parliament with the power to
legislate on any matter not included in List II (National List) of Schedule 7.
In the grand scheme of legal jargon,
nestled unassumingly within Schedule III of Schedule 7 (the Concurrent
Schedules), lurks Entry 97, a clause resplendent with profound potential. You
see, absent any explicit data protection provisions gracing the other
catalogues, this particular entry furnishes Parliament with residual
capabilities to bestow legal clout upon virtually any matter of national
purport, even - dare I say it - the hallowed 'right to privacy' and the
captivating domain of data protection..[13] In
the contemporary interconnected world, India finds itself subject to
intercontinental scrutiny and foreign pressure to effectively and securely
legislate data privacy laws. In accordance with Article 253 of the Indian
Constitution, parliamentary authorities are granted the power to pass
legislation essential to further the implementation of any international
agreement or accord. Despite the fact that India has yet to join the Optional
Protocol to the International Covenant on Civil and Political Rights or
subscribe to the Organisation for Economic Cooperation and Development
guidelines, it did indeed affirm the International Covenant on Civil and
Political Rights on the tenth day of April in the year nineteen hundred and
seventy-nine. This manifestation of commitment obligates member states to
maintain and preserve Article 17, guaranteeing the preservation of the
fundamental right of privacy. Additionally, multiple instances exist in which
India's Supreme Court has utilized laws of an international character in a
plethora of cases that lacked any domestic counterpart or regulation. It must
be said that the Supreme Court has confirmed that international conventions and
dictums must operate in conjunction with the fundamental human rights consigned
in Part III of the Indian Constitution, provided no form of locally-enacted
legislation exists, and there is no friction detected between them. In the form
of the Information Technology (Amendment) Act of 2008 and the Information
Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules of 2009, India has passed legislation
controlling mass surveillance ventures that necessitate the interception of
communicative messages. Nevertheless, these surveillance operations have been
instigated without judicious analysis or scrutiny. In October 2012, a task
force led by Justice AP Shah circulated an extensive report that encompassed
privacy laws in a variety of forums. Said report aimed to present recommendations
concerning the right to privacy, specifically in response to the expansion of
state and corporate surveillance capabilities in the age of digital revolution.
Unveiled by the report, a specified
set of nine National Privacy Principles have been identified as the directive
intended to furnish guidelines and procedures when it comes to the acquisition,
handling, storage, maintenance, access, distribution, disposal, and
anonymization of sensitive personal information, personal identifiable
information, sharing, transfer, and identifiable information. To further
fortify the privacy of all individuals concerned, regardless of their origin,
against any potential violations committed by governments, public entities, or
private companies, the Privacy (Protection) Bill was ratified in 2013,
recognizing the rights of individuals whose data is being processed. However,
it appears that the Bill is not clear on the definition of the term
"informed consent." Moreover, the bill does not account for video
surveillance cameras (CCTV), nor does it mention a set of guidelines for the
use of mobile camera users. Intrusion monitoring technologies have no said
restrictions imposed upon them, and the draft law in place does not provide
sufficient definitions of "public order" or "prevention of
incitement to crime." Thus, the law enforcement agencies are bestowed with
enormous power to intercept anyone's communication, without grounds for
probable cause. To intercept the communication, the entire mechanism
necessitates forensic discovery. Unregulated surveillance is probably one of
the most critical threatening factors to our right of privacy that is being
grossly overlooked.[14]
·
ROAD AHEAD
As a nation boasting one of the
largest democracies on earth, our duty to empower our citizens toward their
rights and preserve national security cannot be overstated. When it comes to
national security and privacy, these two interests have been traditionally
viewed as oppositional in nature. However, with the advent of advanced
technologies and digital surveillance capabilities, safeguarding citizens'
information has become equally as critical as national security itself. It is,
in fact, the optimum time to explore the idea of recognizing the protection of
citizens' privacy and information as an integral facet to preserving national
security. As of late, governmental legislation highlights, including the
alterations made to the IT Act 2000 via the IT Rules 2021, and the broad
exemptions afforded to government and allied organizations under the proposed
Data Protection Bill 2021, have increasingly catered to policies that either
omit or weaken privacy measures afforded to citizens, rather than placing significant
emphasis on establishing privacy-respecting practices for all. Regrettably, the
often-overlooked outcome of adopting these methods is that the privacy and
security of law-abiding citizens are frequently compromised. One such example
of the resultant breach is that the IT Rules mandate originator traceability,
likely interfering with encrypted communication and adding unprecedented
vulnerabilities to other services readily exploitable by unscrupulous parties.
To mitigate issues such as these, it
is imperative that we overhaul the Indian surveillance framework in its
entirety, instead of adopting broad mandates or imposing privacy-infringing
policies. The contemporary framework proving entirely outdate poses one of the
fundamental challenges to employing more advanced security strategies and
digital surveillance techniques. A new framework, therefore, must put in place
a precise, purposive, proportionate, and comprehensive system, with
privacy-respecting practices as the norm across the board. Currently, our
system faces numerous obstacles that must be tackled with urgency. The crux of
the issue lies in the terminology used in our legislations, which is
ambiguously defined and offers little clarity on the scope of intended purposes
for surveillance activities. Such loose definitions have allowed intrusive
surveillance practices to be employed outside the intended boundaries. To
tackle this issue, our system must emphasize accountability mechanisms through
judicial or parliamentary oversight and establish appropriate procedural
safeguards. This would greatly reduce the wide-ranging discretionary powers of
state actors who currently possess the ability to exercise extensive
surveillance powers.
CHAPTER IV: CONCLUSION AND
SUGGESTIONS
·
SUGGESTIONS
Surveillance of any kind should be
conducted by independent, impartial, and competent authorities. Although the
policy recommends that the authority be the judiciary, the realities of the
Indian judiciary and the need for an often immediate response to permission
requests raises the question of whether judges are the best institution to
confer these powers
In all cases of surveillance, the law
must require that, before issuing a surveillance order, it must be determined
and demonstrated that:
·
There
is a high likelihood that a serious criminal offense has been or will be
committed.
·
Other
available, less intrusive investigative techniques have been exhausted,
information access is limited to information reasonably relevant to the alleged
offence, and any excess information collected is properly destroyed or
returned. The information will only be accessed by designated authorities and
will be used for the purposes for which it has been granted if
·
Monitoring
is necessary to achieve legitimate goals
·
All
authorities responsible for authorizing surveillance must have the knowledge
and capacity to make decisions about the legality of surveillance, the use of
such technologies and the human rights implications.
·
Law
enforcement can only collect relevant information such as specified in a
statutory order
·
Information
collected that is not related to the stated Legal purpose, should be destroyed
or a new license to use the information should be obtained
·
Information
should be only used for the purposes specified in the lawful order
·
Allow
Individuals to Participate in the Fair and Public Hearing Process
In India's surveillance system,
anyone who fails to comply with an interception, monitoring, or decryption
order can be held accountable and penalized with up to seven years in prison.
Similarly, noncompliance with an order related to the collection of traffic
data could result in a prison sentence of up to three years. These penalties
are not proportional to the offense committed and do not encourage service providers
to resist or challenge unauthorized or potentially illegal surveillance
requests. In alignment with the Necessary and Proportionate principle of
safeguards against unwarranted access, it is recommended that service providers
be allowed to deny requests that are not legally approved without fear of
imprisonment. Furthermore, it is suggested that the Indian surveillance regime
impose penalties that are commensurate with the severity of the offense, and
that intermediaries not be penalized for questioning the legality of requests. The
surveillance system in India lacks transparency measures. As a result, the
information that the public receives regarding the government's surveillance
practices is either unofficial or based on leaked data.
To ensure transparency and public
oversight, it is suggested that the Indian surveillance regime includes the
following mechanisms of transparency and accountability, which are necessary
and proportionate principles.
·
Being
open and clear about the application and extent of communication strategies is
crucial.
·
The
laws that allow for communications surveillance should be transparent.
·
The
requirements in regards to surveillance of communications that service
providers need to adhere to should be transparent and clearly defined.
·
Whenever
feasible, the procedural aspects of surveillance, including the delegation of
surveillance authority to various entities, should be made transparent.
·
The
development of new surveillance schemes and powers by authorities and departments.
·
The
procurement and enhancement of surveillance technology.
·
In
order to promote transparency, service providers should be permitted to
publicly disclose the protocols they use when handling state communications
surveillance.
·
In
order to ensure transparency and accountability in regards to communication
surveillance, it is imperative that an independent oversight mechanism is
established. This mechanism will ensure that the Indian Government is being
transparent and accurate in its publication of information about the use and
extent of communications surveillance techniques and powers. It is important to
note that this oversight mechanism should be supplementary to any existing
oversight provided by other branches of government.
·
CONCLUSION
As we embark on the journey of newer
technologies such as Web 3.0 and elevate the degree of digital penetration in
India, the government's regulatory priorities must comprehend the pivotal
requirement of restructuring the framework governing surveillance. A deeper
deep-dive into the need for profound consideration of an overhaul of the legal
framework of targeted surveillance (micro-level) should lead us to converse
about other facets such as mass and lateral surveillance, which are currently
not at all delineated by any articulated legal framework. For instance, there
has been an inundation of reports on drones with cameras being utilized for
monitoring purposes where we don't know the use of the recorded videos yet. The
information on the individuals being scrutinized through these audio-visual
tapes is happening in parsimonious silos without defining terms like suspects
or suspicious activities, etc., which is an outrageous violation of the
principles of equitable justice. Additionally, in most cases, individuals
hardly become aware of the data collection and profiling practices happening
through these digital surveillance tools, gravely compromising their privacy.
Hence, we hope that augmenting the need for a resolute remodelling of the
framework governing targeted surveillance will trigger a much-needed
conversation on laying the robust foundations to establish new legal reforms
for a harmonious balance between privacy and national security with other forms
of surveillance. Constitutional principles require government supervision to be
properly carried out within a certain range. The K.S. Puttaswamy v. Union of
India Supreme Court decision reinforced a citizen's right to privacy,
particularly informational privacy, and mandated any infringement on these
rights to be done within the bounds of proportionality, legality, and
necessity. In another judgment, the Manohar Lal Sharma vs Union of India (the
Pegasus case) established a group of experts to recommend changes to the
current laws around surveillance, with the aim of securing each citizen's right
to privacy.
The need to regulate surveillance
activities, particularly those pertaining to privacy, is even backed by
judicial support in India. Recent events such as Pegasus snooping and face
recognition technology have left the public distrustful of surveillance methods
without adequate legislation and safeguards in place. The significance of
surveillance regulation goes beyond the local level and has potentially
far-reaching implications, even on digital trade. Jurisdictions now evaluate the level of
privacy protection afforded to data within other jurisdictions when arriving at
data flow arrangements. As such, surveillance regulation must be approached
with great care and be mindful of the implications of our decisions
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Article Information
SURVEILLANCE VIS-À-VIS RIGHT TO PRIVACY IN INDIA
Authors: RAHUL RAMCHANDRAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/20
- Issue 7
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International Journal for Legal Research and Analysis
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