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Tuesday 29 July 2014
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Do we need privacy laws?

Ashish Tripathi, June 30, 2013, DHNS:

There has to be some oversight as in many cases false information is generated to justify fake encounters and other wrong doings.

How far can privacy of a citizen be compromised? Is public interest more important than the right to privacy of a citizen? Or should there be clear-cut guidelines for government agencies to access information.

Can the government enjoy unbridled power to tap emails and telephone calls in the name of national security? Or should there be a codified law to protect people’s right to privacy.

Noted rights activist and advocate Prashant Bhushan feels that instead of having codified law on right to privacy, we need to make our intelligence agencies accountable.


“There should be some oversight on their functions as we have seen in many cases false information is generated deliberately to justify fake encounters and other wrong doings. Surveillance on political parties at the behest of government cannot be allowed to go on,” he says.

In order to guarantee the right to privacy, we need to ensure strict compliance and enforcement of the provisions of the Telegraph Act and Rules, particularly Rule 419 (A), which was introduced after the 1997 SC judgment in PUCL case, putting in place adequate safeguards for intercepting telephonic calls, usage, destruction of data etc, says senior advocate K V Viswanathan.

Bhushan had filed a PIL raising a question mark over the functioning of the Intelligence Bureau (IB), Research and Analysis Wing (RAW) and National Technical Research Organisation (NTRO) on the ground that there was no statute for governing them.

At the same time, he had opposed industrialist Ratan Tata’s bid to protect his right to privacy by putting a bar on publication and disclosure of Niira Radia tapes.
“Right to privacy is not that major a right. It can be overridden in public interest. In Niira Radia case, we have maintained that the telephonic intercepts showed all kinds of manipulations in judiciary, bureaucracy and media by the corporates through a public relations agent. In this case, public interest required the tapes to be released even at the cost of compromising one’s privacy,” Bhushan says.

Over the years, there have been demands to bring a codified law to protect citizens’ right to privacy. Even though there is no dedicated law in our country for the purpose, the provisions of the Indian Telegraphs Act 1885, particularly Section 5(2) clearly laid down the conditions for interception of messages in national interest.
The Right to Privacy Bill 2011, among others, prohibits interception of communications except in cases with approval of Secretary-level officer. It also requires destruction of interception of the material within two months after discontinuance of interception.

Former Delhi High Court judge Justice S N Dhingra, however, feels by codifying the right to privacy, one would do more damage to it.

“The Supreme Court in a catena of judgments has already expanded the right to life. It has now  included even the right to sleep as enunciated in the Ramlila Maidan case. What more protection do you want,” he asks.

The government agencies, every now and then, have been indulging in snooping, which has resulted in sporadic success, so to say, as revealed in unearthing some of the major crimes, the latest being IPL-VI spot fixing.

But unbridled discretion cannot be given in the hands of executives. There should be checks and balances, says advocate Amit Kumar.

Attack on citizen

“As far as constitutional provisions are concerned, snooping is direct attack on the fundamental right of life of a citizen. By doing that you are in a way putting hurdle in independent and free discharge of his duty,” he avers.

“A journalist cannot talk freely to his sources or lawyer to his client. Everyone would be under apprehension of being followed,” Kumar adds.

When it comes to the right to privacy of a common man, Justice Dhingra points out, “Who is interested in common man?”

“Do you think criminals and terrorists should be allowed to use all sorts of modern gadgets to indulge in crime and government would simply keep sitting with no right to track them through surveillance,” he asks. But Kumar insists the right to privacy is integral part of right to life guaranteed in the Constitution. A person involved in snooping must be answerable to judiciary, he says.

Viswanathan, on his part, says, “We can have a relook at those provisions (relating to Indian Telegraph Act and Rules) to bring them in line with the law in other jurisdictions specially the Regulation of Investigatory Powers Act 2000 and Data protection Act 1998 in England and the judgments thereunder. We can also fortify our laws to keep them in tune with the growth of case law in the Eurpoean court of human rights."

Read more:

Central Monitoring System - A legal viewpoint

Snooping right, left and centre

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