RIGHT TO PRIVACY AND LEGALITY OF SURVEILLANCE
Author: Vrinda Chawla, II year of B.A.,LL.B.(Hons.) from UILS, Panjab University
CONCEPT OF PRIVACY
As the modern times began, many new concepts and doctrines emerged with the it. Notion of human life expanded far beyond the conventional ideas. It was realized that LIFE is not merely being alive, but it contains many other domains which make the human life meaningful. Some of which were recognized as life and death with dignity, having basic necessities of life fulfilled, having adequate Privacy etc. Privacy basically means having enough “private space”, “the right to be alone” or “the state where one is free from public attention”.
Article 21 of the Indian constitution provides every Indian citizen with a fundamental right, “Right to Life”. In the post freedom era, graduallywith the development of Indian judiciary, the scope of right to life which crudely stood for just existing expanded to providing material meaning to people’s lives. It began embracing several other components, including: Right to live with Dignity, right to basic nutrition requirement of human body, right to shelter etc. Walking down the same path, in 2017, in the landmark judgement of K.S PUTTASWAMY VS. UNION OF INDIA (WRIT PETITION CIVIL NO.494 OF 2012), it was held by the Apex court that RIGHT TO PRIVACY was a fundamental segment of right to life. This means that every Indian citizen has the right to maintain privacy of his life, his bodily integrity and personal autonomy. No one can cause hindrance to other person’s right to enjoyment of his personal life in good faith. It is a kind of relationship between govt and people; between one person and others that no unwanted intrusion into the life of one would be caused unreasonably. Privacy has been considered very essential for the development of any given individual; it provides a way by which one can find his best self.
SURVEILLANCE AND IT’S LEGALITY
Surveillance stands for “close observation”, of any individual or a body. Surveillance may be physical, digital, informative etc. With the growth of technology, the scope of surveillance has expanded beyond any limits. Every kind of data, personal conversations, administrative data etc., none is past the extent of surveillance, especially in the digital age. Every govt agency, statutory body or office is now well equipped with digital resources and is a storehouse of information of citizens, personal and governmental. The databases of these bodies contain data either collected through consensual forms, or though surveillance. In the Puttaswamy case, besides giving recognition to right to privacy, the apex court held that govt had full right and capability to hold all the required and legit information regarding citizens and their personal lives, whichever is essentially needed, as long as the same is adequately safeguarded by the govt. The center was directed to take appropriate measures to shelter the data so that no wrongdoing can occur. This ratifies that bounded surveillance by government is completely constitutional and legally upheld.
SOCIAL MEDIA APPS AND IMPACT ON PRIVACY
With the emergence of smart phones, social media applications have taken the dimensions of communication to another level. Apps like WhatsApp, Facebook, Instagram, Snapchat and innumerable more have shrunk the world. Availing these apps requires agreeing to certain terms and conditions which basically give the right to companies to store and use data of users, some even take permission of complete surveillance of personal conversations. The policies of social media apps have expanded the concept of surveillance to greatest boundaries. Studies have indicated that the private conversations, every action of users online can be easily tapped and recorded by the apps, the same being free to use it however they want, for commercial or marketing purposes. Social media apps can monitor information including location, relations of user and even his financial passcodes. This close monitoring of user data is surely endangering privacy, and more than privacy, it is endangering safety of the users.
The same has been highlighted by the supreme court of India in the latest judgement in the case of WhatsAppLLC vs Competition commission of India &Anrs. (W.P C. 4378/2021 & CM 13336/2021)whereby the privacy policies of WhatsApp and Facebook were found to be jeopardizing user’s Right to Privacy. The court ordered tech companies to disclose the purpose for which data will be used to the users before implementing the same. Value and grave concern over privacy was expressed by the courts as no real choice except AGREE is being given to users if they wish to continue using the app. Where alternates of WhatsApp and Facebook visibly don’t exist, the use of these applications becomes necessity at some point. Legality of surveillance by these apps, at extreme level and depth, without even awareness of the user was questioned here.
The complication of surveillance by social media apps came into limelight specifically in greater proportion when the whole of human life shifted to virtual, from education to work, everything and anything which kept going even during the spread of deadly corona virus was only due the presence of internet and networking apps. The emergence of video calling apps which require permission to use camera have further increased the risk of unwanted surveillance, increasing concerns over privacy. Many questions arise here regarding legality of the same, where on one hand Indian judicial systems are giving so huge importance to the same and working effortlessly to protect the fundamental Right to Privacy, where are social media apps and blameworthy huge surveillance taking us on the other hand?
INITIATIVES BY GOI TO SAFEGUARD RIGHT TO PRIAVCY
Steadily widening distress over matters of privacy has urged the govt to take some steps to ensure safety of citizens. One of the earliest attempts by center was releasing Privacy Protection Bill, 2011. The crux of this bill was that “Every person has a right to protection of his personal data and legal information passed on through telephonic conversations or use of any other electronic media, which are important to save his honor and family life”. An important point to be noted here is that when this bill was passed, in the year 2011, telephones were the bulk means of communication as internetworking was not highly developed. Such attempts depict that how privacy forms the very foundation of our ideals.
The latest Data protection bill, 2019, later named as Data protection bill, 2021 even thoughstands on the pillars of protecting and safeguarding privacy, pictures many shortcomings. Full and final right of surveillance, even mass access to personal communication has been declared valid by this bill, if it falls into ensuring the interest and security of state. The govt hasput this bill supreme to all other legislations in the same field. The very soul of this bill which was supposed to be “protection of privacy of citizens” is now revolving around “maintaining state security”. More than serving its purpose, the bill seems to have been providing the govt with more and more power to intrigue and encroach personal lives of people in the name of “states’ interest”. The most decried feature of this act is the power of exemption given to the govt whereby the same can exempt any govt agency or statutory body’s surveillance of personal data under certain given conditions. Now the question here arises that when a bill which is supposed to preserve the heart of Article 21, Right to Privacy, is instead saving the state’s right to intervene in personal communication and data, then how exactly is Indian legislative system going to fulfil the ideas upon which our country and its constitution stand?
Another recent watershed event in the ongoing chronology of surge in surveillance is the revelation of spy software “Pegasus”. Pegasus is a software developed by Israeli tech company NSO group with the major purpose of helping world govts to keep an eye on terrorists, criminals and antisocial element, so that better governance can take place. Another important factor contributing to the development of Pegasus software is the concern that concept of privacy, which is to help people live a better life, should not conversely be used as a shield by negative elements to top off their convictions. This software is only available to govts and can be used in law enforcement and counterterrorism work, but in the year 2021, disclosures have been made regarding use of this software to spy upon journalists, protesters, politicians and other influential people by govts of over 50 countries. The technology of software has developed to such a level that the person being spied won’t be able to detect the presence of Pegasus in his smartphone by any means! Studies have indicated the use of this software by Indian govt as well, to spy upon abovementioned gentry. Here, many questions arise regarding approach of center towards the fundamental rights of people. This surveillance not only obstructs the Right to privacy, but its legality is also questionable under many acts of India including Information technology act which put this kind of surveillance into unlawful bracket.
After a really long wrestle since independence, Indian citizens were finally presented a right which was indeed requisite at this point of time, the Right to Privacy. This fact can’t be denied that Article 21 i.e. Right to Life would inevitably be lifeless and mundane if it did not consist vitality of providing privacy. Of course, how can anyone flourish and blossom if he can’t see a private and personal life of his own, which is free from any unwanted monitoring and inspection? The value of this right is well recognized by citizens. Privacy forms the very foundation of a human life, and thus, it should be guarded and preserved by every means the state has.
With the technology developing and means of creating chaos in a society increasing, surveillance becomes necessary at a certain point. But the fine line that exists between necessity of surveillance and infringement to people’s privacy should be well respected. Nonetheless, where mechanism of surveillance is increasing on one side of the coin, the other side is still questioning the legality and extent of surveillance. The terminal beyond which any surveillance would harm Right to Privacy is still a dubiety. Thus, it can be concluded that attempts to find the precise balance between both the sides of this coin should continue until we find an equilibrium.