Surveillance State: A significant judgment

In a significant judgment, a division bench of the Bombay High Court recently held that illegal tapping of phone calls infringes upon the fundamental right to privacy and the record so collected warrants to be destroyed. Phone-tapping should be conducted only in exceptional circumstances and only on the ground of public emergency or in the interest of public safety. The ruling has far-reaching implications on the State’s unbridled surveillance without any concrete procedural safeguards.

Under the present legal regime, phone-tapping is carried out under the provisions of the Indian Telegraph Act (ITA), 1885, whereas surveillance is done under the Information Technology Act, 2000, primarily Section 69. It is pertinent to note that there is no judicial safeguard during the entire surveillance process. The constitutionality of provision of the ITA allowing phone-tapping was challenged in 1997 in the PUCL case. The judiciary mandated certain safeguards in the form of a ‘review committee’ and held the provision constitutional.

At the time, the judiciary had not possibly envisaged the methods and modern ways of surveillance such as geo-tagging, facial recognition, encrypted conversations and data. These methods substantially increase the deep and all-pervasive control of the State over the data of individuals and groups. In this age of technology, the observation of the Supreme Court in Gobind vs State of Madhya Pradesh seems to have indeed become true.

“Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.”

We are currently witnessing excessive State surveillance under archaic laws which have failed to keep pace with technological advancements. Consequently, the infraction of the fundamental right to privacy is a recurring phenomenon.

This infringement has an impact on our overall development as individuals. Mass surveillance impacts directly on the way we exercise our civil liberties – thinking, speaking, communication, reading, and the way we make up our minds about social and political issues. Such a phenomenon is particularly dangerous as it tends to suppress dissent in a democracy and forces us to “toe the line” as there is constant fear of prosecution by the State. This primarily casts a ‘chilling effect’ on our civil liberty and adversely impacts “intellectual privacy.”

Intellectual privacy has been defined as the “ability, whether protected by law or social circumstances, to develop ideas and beliefs away from the unwanted gaze or interference of others.” The idea that free minds form the foundation of a free society is the underlying basis of intellectual privacy, and surveillance of activities of individuals casts a ‘chilling effect’ upon this, adversely affecting the exercise of free thought. It is necessary to protect and promote this individualism which forms the core commitment of our constitutional culture. Intellectual privacy, a subset of privacy, is not only limited to ‘intellectuals,’ but is rather an essential component of privacy for all individuals and has been recognised by the Preamble to the Constitution, “LIBERTY of thought, expression belief, faith…” In his dissenting opinion in Abrams vs United States, US Supreme Court Justice O W Holmes characterised the ability of free thought as the foundational value of democratic institutions.

The chilling effect of surveillance was explained by Justice Subba Rao in Kharak Singh, which was subsequently approved in the Privacy judgment. Justice Subba Rao noted that it is indeed impossible to show actual, tangible harm in case of surveillance:“The freedom of movement in clause (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do.”

With the development in jurisprudence on privacy to prevent the ‘chilling effect’ and establish judicial norms for infraction of privacy following the declaration of privacy as a fundamental right, our understanding of State surveillance and phone-tapping needs to be revisited, more so when it has been clearly highlighted that the safeguards laid down by the Supreme Court in PUCL case do not seem to be effective.

The problem that State surveillance poses in our daily lives is both unique and acute as India faces a long-standing threat of terror. In such a scenario, surveillance laws and rules framed thereunder seem rather archaic, not in line with recent developments of privacy jurisprudence, and fail to offer any real protection to citizens against unjust executive action, which has its own institutional bias. Not denying the fact that the State indeed has the legitimate right to subject individuals and groups to surveillance, unfettered and unconstrained surveillance without adequate procedural safeguards poses a real threat to the right to privacy.

Recently, an expert committee headed by retired Justice B N Srikrishna noted that the ‘review committee’ mandated by the Supreme Court in the PUCL case convenes once every two months, and the task is ‘unrealistic’ as it has to review more than 15,000–18,000 surveillance orders in every meeting.

Ex-ante, ex-parte judicial permission is the best way to adequately address the interest of the State and that of the citizens as well. Before the surveillance could be carried out by the State, the executive should through a lawyer present the ‘probable cause’ to judges who should then permit, or not permit, such surveillance. This way, the person who would be put under surveillance would not be alerted beforehand and concerns regarding unfair surveillance would also be resolved. In cases which demand instant action, surveillance may be carried out and later be ratified by a judge. Thus, ‘case-to-case’ basis of surveillance would also be secured. This would rule out institutional bias of the executive and also ensure that secrecy is maintained and at the same time, unjust surveillance is not carried out.

(The writer is a student at National Law School of India University, Bengaluru)