Right to Privacy v. State Surveillance Mechanism

ABSTRACT

Privacy is an issue of profound importance in India. This research article examines the tension between the right to privacy as a fundamental right and the state’s surveillance. Recent years have seen the right to privacy, particularly as it pertains to the surveillance and interception of communications, transform from a much-neglected human rights issue to the focus of multiple UN General Assembly and Human Rights Council resolutions. Since March 2015, it has been the subject of a dedicated United Nations special procedures mandate. This policy note seeks to chart the long overdue and rapid progress of the right to privacy to the top of the agendas of regional and international human rights mechanisms.[2]India is a signatory to the Universal Declaration on Human Right 1948 (article 12) and the international convention on civil and political rights (Article 17) which recognize privacy as a fundamental right. The privacy recognized as a part of Article 21 of the constitution in the landmark judgement of Justice K.S. Puttaswamy v.Union of India and if there is a infringement while there is a surveillance, the individual may seek constitutional remedies  for the violation of its right. The article concludes by proposing a reform framework that centred on judicial pre- authorisation, transparency, state surveillance and data protection rights.

Keywords:- Right to Privacy; State Surveillance; Constitutional Law;Data Protection; National Security; Judicial Oversight; Digital Rights.

INTRODUCTION

The right to privacy safeguards an area of autonomous development and liberty, a “private sphere” that shall not be intruded upon by the unsolicited interventions of state actors or individuals and corporations. Beyond this core, many legal systems also recognize a freestanding and more far reaching right to control the collection and use of one’s own personal information. Such an expansive trend is clearly mirrored in the most recent regional human rights instruments, such as the European Charter of Fundamental Rights.[3]

LITERATURE REVIEW

Early academic commentary sought to locate privacy as a `qualified` or `derivative` right, based in law through the landmark cases Kharak Singh v. State of U.P.(1963) and Govind v. State of M.P.(1975), which both upheld `a limited right to privacy` against state intrusion, according to the `compelling state interests` test. Prior to the Puttaswamy judgment in 2017, scholars examining the jurisprudence were unanimous on the lack of doctrinal clarity in the judiciary`s approach towards the right to privacy, stemming from the `inconsistent` eight-judge majority and six-judge minority decisions in M.P. Sharma v. State of M.P.(1954) and Kharak Singh. The literature is largely in agreement that Puttaswamy has irreversibly shifted the `benchmark` for evaluating surveillance laws, as well as the `procedural inadequacy` of telephone tapping and interception procedures in India.

RESEARCH METHODOLOGY

Primary sources include the Constitution of India (Articles 19 and 21), the Indian Telegraph Act, 1885 (Section 5(2)), the Telegraph Rules, 1951 (Rule 419-A), the Information Technology Act, 2000 (Section 69), the IT (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, the Digital Personal Data Protection Act, 2023, and case laws such as M.P. Sharma, Kharak Singh, Govind, PUCL, and Puttaswamy. Secondary sources comprise Law Commission reports, Justice A.P. Shah Committee Report, 2012, journals, and articles by accredited authors.

RIGHT TO PRIVACY

Privacy is always the integral part of human life since time is immemorial. In the era before digital technology dominated people’s lives, the state had very limited resources to engage in surveillance. This meant that tailing subjects, opening letters, or wiretapping had to be done manually and on a relatively small scale. The state in the twenty-first century no longer faces such restrictions since metadata, facial recognition, biometric data, and centralized tapping of communications now provide it with almost unlimited opportunities to observe its citizens. This development raises fundamental questions about the right of every individual to be left alone and the state’s interest in its citizens’ activities.

In Kharak Singh v. State of U.P. [4], the UP Police Regulations conferred surveillance power upon certain “history sheeters” – that is, those charged (though not necessarily convicted) of a crime. These surveillance powers included secret picketing of the suspect’s house, domiciliary visits at night, enquiries into his habits and associations, and reporting and verifying his movements. These were challenged on Article 19(1)(d) (freedom of movement) and Article 21 (personal liberty) grounds. Although not expressly, the Court virtually holds, in terms, that tracking location, association and movements does violate privacy, and only finds that constitutional because there is no guaranteed right to privacy within the Constitution.

STATE SURVEILLANCE

Surveillance by police (the law enforcement authority) is used for keeping peace and law in order. The Cambridge Dictionary defined surveillance as “The careful watching of a person or place especially by the police or army, because of a crime that had happened or is expected.” [5]

In Govind v. State of Madhya Pradesh[6], the petitioner challenged the validity of regulations 855 and 856 of Madhya Pradesh police regulation made under section 46(2)(c) of the police act, 1861. He complained of certain false cases against him and the facts were as follows: The petitioner’s grievance was that the police were making domiciliary visits both day and night, at frequent intervals, that they were secretly picketing his house to his house; movements were being watched by the head of the village. The petitioner prayed for a declaration that regulation 855 and 856 are void as contravening his fundamental rights under the above article 19(1)(c) and article 21. The court observed that, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. It was held that the procedure under the regulations is reasonable having regard to the provisions of regulations 853(c) and 857. While declaring that surveillance does not tantamount to an unreasonable restriction on the right of privacy

JUDICIAL OVERSIGHT

The first case to address the issue was M.P. Sharma v. Satish Chandra  in 1954. In that case, the Court upheld search and seizure in the following terms: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right by some process of strained construction.”[7]

 In R.M. Malkani v. State of Maharashtra[8], the Court held that attaching a recording device to a person’s telephone did not violate Section  of the Telegraph Act, [9]because: “where a person talking on the telephone allows another person to record it or to hear it, it can-not be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone.

DATA PROTECTION 

The Information Technology Act, 2000: The Information Technology Act, 2000 (“IT Act”) widely regulates the interception, monitoring, decryption and collection of information of digital communications in India. Section 69 of the IT Act [10]empowers the Central Government and the State Governments to issue directions for the monitoring, interception or decryption of any information transmitted, received or stored through a computer resource.

In P.R Metrani v. CIT[11], The apex court held that a search and seizure provision in Section 132(5) of the Income Tax Act was construed strictly as it constituted a “serious invasion into the privacy of a citizen.” The similar question of surveillance is undertaken namely as search and seizure as there is clear indication that anything more than a targeted search is ipso facto unreasonable. The court read down the provisions to save it from unconstitutionality.

NATIONAL SECURITY

National security is one of the recognised “legitimate state aims” under the Puttaswamy proportionality test and is also a ground for reasonable restriction under Article 19(2) in relation to free speech, and implicitly in relation to personal liberty under Article 21.

Telephone interception. Indian Telegraph Act, 1885, Section 5(2): lawfully authorizes interception of messages “in the interest of public safety or in case of public emergency” upon “proof of a “public emergency” or “interest of public safety.” Rule 419A, newly inserted in the Telegraph Rules after PUCL, requires approval by the Union or State Home Secretary, upon the recommendation of a committee that includes the Cabinet Secretary and other senior ministers. However, as PUCL points out, the committee is completely executive in nature; no judicial review or oversight is provided at any stage.

Mass surveillance infrastructure. In addition to individual surveillance, India has surveillance systems that allow for direct and real-time interception of all communications, without the need for service providers – the Centralized Monitoring System (CMS). Additionally, special systems such as NETRA – Network traffic analysis system for keyword searches of Internet traffic, and NATGRID – the National Intelligence Grid for sharing information between government databases also exist. However, with the exception of Telegraph Act rules, all of CMS, NETRA, NATGRID lack proper legislative coverage. Instead, they are established by executive orders, and subject to internal administrative control only. This raises serious questions about their compatibility with the “lawfulness” principle of the Puttaswamy test, as direct interception by executive orders may not be considered “lawful” in the constitutional sense.

Facial recognition and biometric databases. The facial recognition software (FRT) used by state police, as well as the huge biometric database of Aadhaar, although upheld by Puttaswamy (Aadhaar) (2018), are also of concern. However, neither of them is covered by any specific legislation – and the functioning of the Automated Facial Recognition System (AFRS) developed by the National Crime Records Bureau also falls under the “lawfulness” question raised in PUCL.

DIGITAL RIGHTS

In Malak Singh v. State of Punjab ^[12]dealt with the provisions of Section 23 of the Punjab Police Rules under which a surveillance register was to be maintained among other persons, of all convicts of a particular description and persons who were reasonably believed to be habitual offenders whether or not they were convicted. The Hon’ble Justice O Chinnappa Reddy views: “Organized crime cannot be successful fought without close watch of suspects. But surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Art. 21 of the constitution and the freedom of movement guaranteed by Art. 19(1) (d). That cannot be permitted.

CONCLUSION

There is no express mention of ‘privacy’ in the provisions of the Constitution of India. In M.P Sharma, the question of law was related to right to property. The court has not rejected privacy but it rejected in the context of search and seizure of documents. Kharak Singh is related to surveillance powers of the police under UP Police Regulations under Article 19(1) (d) and Article 21. Article 21 is a constitutional right against state and not between individuals. The differences lie in the standard for justifying an infringement. The court insisted upon the far higher standard of compelling State interest. The state has the power to intrude to maintain a free and democratic society. It is submitted that the Supreme Court ought not to allow state or central government’s actions on assertion a national security interest and compelling state interest. The Apex court is hesitant in its role as the guarantor of civil liberties. In India, the Supreme Court as an interpreter of the Constitution has responsibility to converge the balance between individual and state interest. The legislative intent of the Parliament should be within the ambit of prosperous growth of the nation.

REFERENCE(S):

Secondary Sources

1. Rupinder Kaur. Surveillance and Privacy: A Ramification of Article 21. Int. J. Rev. and Res. Social Sci. 2018; 6(3):284-290. doi: 10.5958/2454-2687.2018.00029.1 web sites :- https://ijrrssonline.in.
2. Nyst, C., & Falchetta, T. (2017). The right to privacy in the digital age. Journal of Human Rights Practice, 9(1), 104-118.
3. Besides the right to privacy (art. 7), the Charter of Fundamental Rights in the European Union, 2000 O.J. (C 364) 1 explicitly guarantees the right to data protection (art. 8). See Stefano Rodotà, Data Protection as a Fundamental Right, in REINVENTING DATA PROTECTION?, 77 (Serge Gutwirth et al. eds.,, 2009).
4. Available at https://dictionary.cambridge.org/dictionary/english/surveillance accessed on July 12, 2018 at 2:30pm IST.

Legislation

5. 15, Indian Telegraph Act, 1885.
6. Part II, Dated February 5, 2009 Published in The Gazette of India,2000.

Cases

7. Malak SinghState of Punjab
8. R Metraniv. CIT
9. In R.M. Malkani v. State of Maharashtra
10. P. Sharma v. Satish Chandra
11. GovindState of Madhya Pradesh
12. Kharak Singh v. State of U.P.

[1] Sweety, 4^th year law student B.A.LL.B from Rayat Bahra University. Email I’d sweetiegupta94@gmail.com Phone number 7717369874

[2] Nyst, C., & Falchetta, T. (2017). The right to privacy in the digital age. Journal of Human Rights Practice, 9(1), 104-118.

[3] Besides the right to privacy (art. 7), the Charter of Fundamental Rights in the European Union, 2000 O.J. (C 364) 1 explicitly guarantees the right to data protection (art. 8). See Stefano Rodotà, Data Protection as a Fundamental Right, in REINVENTING DATA PROTECTION?, 77 (Serge Gutwirth et al. eds.,, 2009).

[4] AIR 1963 SC 1295 : (1964) 1 SCR 332 (“Kharak Singh”).

[5] Available at https://dictionary.cambridge.org/dictionary/english/surveillance accessed on July 12, 2018 at 2:30pm IST.

[6]  (1975) 2 SCC 148.

[7] AIR 1954 SC 300 (“M.P. Sharma”) ;

[8] (1973) 1 SCC 471, 476 (“R.M. Malkani”).

[9] S. 15, Indian Telegraph Act, 1885.

[10]  Part II, Dated February 5, 2009 Published in The Gazette of India,2000.

[11] (2007) 1 SCC 789.

[12] (1981) 1 SCC 420.