Are India’s laws on surveillance a threat to privacy? (The surveillance notification 2018, under section 69)

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Are India’s laws on surveillance a threat to privacy? (The surveillance notification 2018, under section 69)

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• YES, THEY ARE.

1. 2017 Right to Privacy verdict: It was a landmark. But the Aadhar judgment 2018 was a complete dampener, as Aadhar- PAN linkage was upheld and Aadhar allowed for govt. schemes.
2. So who is left out? Those Indians who neither pay tax nor use any subsidy. Then came a series of executive orders  curtailing citizen liberties.
3. MHA notification 2018: The MHA authorised many agencies under sub-section 1 of Section 69 of IT Act 2000, read with Rule 4 of IT Rules, 2009, to collect electronic information.
4. Internal security: Are Delhi Police, CBI and DRI dealing in internal security? If not, what is the game at play?
5. Collection of data: The govt. wants more and more of it. It's a surveillance race. So, will the end be a police state?
6. At the mercy of the bureaucrats: Politicians change every 5 years, but bureaucratic power remains. They are pushing the "police  state agenda". And this is made easier when the elected govt. suspects everyone!
7. A non-adversary: Since the bureaucrat will not vie for the biggest throne, he is not seen as a competitor at all!
8. Personal data at stake: This will ultimately lead to the situation where personal data of each citizen is in the hands of the bureaucrats.

• NO, THEY ARE NOT.

1. Article 21: The Constitution of India guarantees a right to life and liberty under Article 21. The right to privacy judgment 2017 made it a fundamental right.
2. Not absolute: This right is not unbridled or absolute. The Central Govt. under Section 69 of IT Act 2000 can impose reasonable restrictions on this (by intercepting, decrypting, monitoring internet traffic when there is a threat to national security, national  integrity, state security, and friendly relations with other nations, or in interest of public order and decency, or to prevent incitement to commission of offence).
3. Superseding right to privacy: In such cases only, can national interest supersede privacy rights. A Joint Secretary level officer can give such orders (approval on requests).
4. Reasonable basis to initiate surveillance: In the US, State authorities cannot start prying until there is tangible evidence. Any other action can be struck down by Courts as arbitrary.
5. Checks and balances needed: The GoI needs to increase accountability and responsibility, and put in checks and balances.
6. Grounds to be tested: The implementation will be tested on grounds of reasonableness, fairness, prorportionality, and judicious exercise of powers.
7. Misuse: If a citizen comes to know that he/she is under surveillance, she will never be told the reasons for that being done! The Review Committee will check arbitrariness in that case. The PUCL v. Union of India case 1996 verdict had laid the ground rules for it.

• MAYBE.

1. Surveillance in digital times: Past few years have seen many battles over this disputed territory. First it was amendment to the Section 69, of the IT Act in 2008 (expanding powers of interception) and then it was S.C.'s order in 2018 directing the GoI to frame social media guidelines to have intermediaries address sexually abusive content.
2. Amendment to 2011 Intermediary Rules: GoI did it to trace originators of unlawful info. That was post the fake news epidemic! GoI feels social media is a big headache now.
3. Moral panic: GoI is panicky as the MNCs controlling the platforms do not respond quickly, always, to requests of law enforcement authorities.
4. Unchecked powers: No doubt that the police need to work hard to ensure justice to victims of online gender-based violence, but the amendments confer unchecked powers on the executive.
5. Not possible to have back door for one: If law enforcement wants back door entry into platforms to snoop on one individual, it is practically for "all individuals".
6. Rule of law: It is the basis that ties together constitutional principles, legal norms and procedural rules. We have to protect it, and then see how surveillance can be done.
7. Test of proportionality: This test, as per the Privacy verdict, has to be respected.

• Summary : Three answers to the question "Are India's laws on surveillance a threat to privacy?"

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