Something About The Law

As a rather protracted tussle between Research In Motion (Blackberry’s Canadian owners) and the Indian Govt. unfolds, it may be difficult to guess who will emerge victorious – however, it is easy to figure who the losers will be – ordinary citizens (of course, I’m not suggesting that ordinary citizens use Blackberrys)

Strangely enough, the debate on privacy of consumers in the Blackberry issue remains waiting to be picked up by the media, and the only point of discussion is whether Blackberry will relent to de-crypting their (or rather, our) information and risk losing out on the USP of their business model. Unfortunately, the reasons as to why it has succeeded as a business model seem to be ignored; clearly, a good number of Indians value their privacy in personal and professional networks.

But the Government is slated to take these networks down, brick by brick. If RIM was the first to bite the bullet, Google and Skype are next in the firing line. This is no isolated trend. In fact, the Government has been categorical in stating that it will continue to demand information from virtual private networks, until it has, according to a Home Ministry Directive, “access to everything”. A bit rich, coming from an establishment that is contemplating amendments to dilute accessibility under the Right to Information Act.

Why and how is this gradual erosion of virtual privacy happening? The reasons may be put down to the absence of effective laws that protect the privacy of citizens. For one, the Government is vested with broad and sweeping powers under the Information Technology Act, 2000 (as amended in 2008). Under Sections 69 and 69A of the Act, the Central/State Govt. may not only intercept, monitor or decrypt information transmitted, received or stored through any computer resource, but can also block public access to it. Of course, all of this should be done in the interests of the security of the State. In the aftermath of the 2008 Mumbai attacks, this seems to be an exceedingly simple criterion to satisfy.

Indeed, the amendments to the IT Act were passed in the backdrop of 26/11, when the Government came in for heavy criticism for its inability to track and monitor conversations held by the attackers. Not surprisingly, these set of amendments were accompanied by little public discussion, and were part of 7 Bills passed by the Lok Sabha in 17 minutes during its monsoon session last year. But should we allow our privacy to be lost completely in the euphoria drummed up by the Government in the name of security concerns?

The debate over national security and its impact on civil liberties, such as privacy and free speech, is nothing new in constitutional democracies. In India however, this issue assumes great significance because the Constitution does not explicitly recognize the right to privacy. When the cornerstone of a nation’s democracy does not grant the right of privacy to its citizens, what can be expected from feeble protests by Blackberry to protect its business interests?

The immediate solution, it would seem, lies with the Supreme Court. Surely, with its activist leanings, it would not be too much to expect the Court to read the right of privacy into our guaranteed fundamental rights?

To be sure, the Supreme Court has already done this. In 1995, on a case of phone-tapping by the Government, the Court held that the right to privacy is enshrined in Article 21 of the Constitution, as a part of the right to ‘personal liberty’. This was followed up by later decisions, notably in 1997 and 2002. However, none of these decisions, delivered by a bench of two or three judges hold good against the seminal case on privacy, decided by six Judges of the Supreme Court in 1963. In Kharak Singh v. Union of India, the Court was unequivocal in stating that the right to privacy is ‘not a guaranteed right’ under the Constitution and ‘therefore, the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded’ is not a violation of a fundamental right. This law remains valid, even today. In any event, the presence of conflicting decisions present a huge legal mess to anyone who would think of challenging the constitutionality of amendments made to the Information Technology Act.

The Government is already watching us from closed circuit cameras in public places. It will soon arm-twist mobile operators to tune into our conversations; then it will enter our e-mail accounts and monitor what we send and receive. If that’s not enough, it will be listening when we speak to our friends and family from another part of the world on the internet.

Security concerns undoubtedly need to be addressed, but in doing so, the State must conform to the rule of law, in a manner that accommodates the privacy and personal liberty of its citizenry. For this, rights need to be strengthened, and the draconian laws diluted. The National Commission to Review the working of the Constitution recommended in 2002 that a Right to Privacy must be established as Article 21-B. Before the State pervades every aspect of the private life of its citizens, the Court or the Legislature must step in and check the damage.