The outbreak of covid-19 ushered the state to engage in surveillance to control the spread of the pandemic. Generally, state lawfully engages in surveillance for the security and harmonious of the nation. The laws that entitle the state to engage in surveillance also assures the individual privacy of the citizens.
Evolution of State Surveillance in India
As it is desperate time, the state has been forced to engage in surveillance activities for the welfare of the state. In India surveillance is prohibited, nevertheless, surveillance conducted by the government is legal if a proper legal channel is followed by the appropriate government.
Provision Governing Surveillance in India
The Indian Telegraph Act, 1885 has been enacted for the interception of messages of the citizens. According to section 5 of the Telegraph Act, the Central Government, and the State Government empowers to order the interception of messages in two circumstances: (1) in the occurrence of any “public emergency” or the interest of “public safety”, and (2) if it is considered necessary or expedient to do so, in addition to the following instances: in the interests of the sovereignty and integrity of India; the security of the State; friendly relations with foreign states; public order; and for the prevention of incitement to the commission of an offence. This provision provides the situations at which the violation of the privacy rights of the citizens by the state can be done[1].
Telephone Tapping
The act of telephone tapping affects the right to privacy as well as the right to freedom of speech and expression[2], both are Fundamental Rights under the Constitution, But subject to reasonable restrictions. If it is undertaken in an unauthorized manner, then it is illegal and will result in prosecution of the person responsible for breach of privacy.
Information Technology, 2000
The IT Act widely regulates the interception, monitoring, decryption, and collection of information of digital communications in India. More specifically, section 69 of the IT Act empowers the Central Government and the State Governments to issue directives for the monitoring, interception of any information transmitted, received, or stored through a computer resources. Section 69 of the IT Act expands the grounds upon which interception can take place as compared to the Telegraph Act. As such, the interception of communications under Section 69 is carried out in the interest of the sovereignty or integrity of India; the defense of India; the security of the State; friendly relations with foreign States; public order; the prevention of incitement to the commission of any cognizable offence relating to the above; and for the investigation of any offense. Apart from the above two statutes, several criminal statutes provide for the interception of communications and how such intercepted communications may be used. For example, the Unlawful Activities Prevention Act, 1967 allows for information collected through interception of communications (under the IT Act or the Telegraph Act) to be produced as evidence for an offence under the Act.
Remedy for Unlawful Interception
The individuals can approach and claim an invasion of their right to privacy. This privilege is provided because if any interception made by an unauthorized body[3] is considered to be illegal. So, punishments to the infringed party and compensation are provided to the affected parties. The penalty for unlawful interception is a fine of up to 500 rupees and imprisonment of up to one year[4].
Many countries in the world engage in community surveillance to hold the outbreak of the spread of covid-19. Some made it possible through android applications. In India, the central government has created an application called ‘Arogya sethu’, through which the unaffected were protected from the affected. With this intend, the app collects some personal data of the users and forces them to enable their GPS and Wi-Fi always. This can be used for live tracking and surveillance in later days. There arises the issue of privacy of the users.
The WHO suggested all the countries to engage in door-to-door health to control the virulent spread of the corona virus. Accordingly, the countries increase the surveillance of the citizens under the head ‘Health surveillance’. The Governments provide interim guidance to all the local bodies regarding the health surveillance, the affected is prevented from others. The affected were closely observed and their personal datas have been stored for future reference.
Right to Privacy
The constitution guarantees a fundamental right to privacy[5]. But the Constitution does not expressly recognize the right to privacy. The Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21 of the Constitution.
The first decision of the Supreme Court dealing with this aspect is in Kharak Singh v. State of U.P[6] the Supreme Court for the first time recognized the right to privacy which is implicit in the Constitution under Article 21. The Court held that the right to privacy is an integral part of the right to life, but without any clear-cut laws, it remains in the grey area. The view was based on the conclusion that the infringement of a fundamental right must be both direct as well as tangible that the freedom guaranteed u/a 19(1)(a)- a right to freedom of speech and expression was not infringed upon by a watch being kept over the movement of the suspect.
Sections 29, 29, 164(3) and 165 of CrPC., section 509 of IPC, also safeguard the privacy positions of citizens. Right to privacy is a fundamental human right recognized in the UN Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1976 and in many other international and regional treatises. The Criminal Procedure Code, 1973 deals with access to stored data. It provides that a court in India or any officer in charge of a police station may summon a person to produce any document or any other thing that is necessary for any investigation, inquiry, trial, or any other proceedings under a law.
Justice K.S. Puttuswamy (Retd.) & Anr. v. Union of India & Ors.
In this Supreme Court order, the issue of privacy was discussed in light of the Unique Identity Scheme. The question before the court was whether such a right is guaranteed under the Constitution, and if it is, the source of this right, given that there is no express provision for privacy in Indian Law. The Attorney General of India argued that privacy is not a fundamental right guaranteed to Indian citizens. Ultimately, the Court left the question to be deliberated by a larger constitutional basis since the earlier judgments that denied the existence of the right to privacy was given by larger benches than the cases where the right to privacy was accepted as a fundamental right. This led to unresolved controversy, leading the Court to refer the matter to a larger bench to be settled. This was settled in the 2017 ruling that there was a fundamental right to privacy in the constitution[7].
Personal Data Protection Bill, 2018
- To provide for the protection of privacy of individuals relating to their data and to establish a Data Protection Authority of India for the said purposes and the matters concerning the personal data of an individual.
- Framed on the recommendations of B.N. Sri Krishna Committee (2018), the committee of experts on data protection framework for India.
Right to Privacy under Article 21
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by the Part III of the constitution. The right to privacy is one such right that has come to its existence after widening up the dimension of Art.21.
In Govind V. State of M.P.[8], accepted the right to privacy as an emanation from Art.19(a), 19(d) and 21 but the right to privacy is not absolute. In Rajagopal V. State of TN, it was held that the Right to privacy is to be implicit in Art.21.
Violation of Privacy & Liberty of Citizens
Every person is entitled to protect his or her personal information from public encroachments. The ‘Arogya sethu’ app of the Central Government does not arise out of such contractual consent as per the Indian Contract Act,1872. Location information is not covered under the definition of sensitive personal data under the IT rules, hence, any corporate and authority can disseminate such information to other parties without attracting any liability under the IT Act or IT rules. In the absence of any specific provision preventing the dissemination of location information, apps can easily trade our location information with the third parties. There are techniques like encryption, anonymity, user empowerment and other legal methods according to the acts and provisions. The right to privacy has evolved across nations. It encapsulates obligations of the State concerning the protection of personal data.
Changing Definition of Privacy
The definition of privacy has been changed drastically. Privacy cannot be defined because it differs from person to person. But in the eyes of law right to privacy includes right to be left alone, limited access, control over information, personal growth, intimacy and self-identity. According to Black’s Law Dictionary “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”. Privacy is associated with interests in autonomy, dignity and self-determination. Technological innovations have outpaced our privacy protections. The definition of privacy hasn’t been changed but the scope of privacy has been declined. Privacy differs from person to person, what one person thinks as personal may not be so for the other. Analyzing the nature of privacy, law has assured privacy to individuals. But using the exceptions provide to this right, the government or others persons work in the dark shadows.
Though the intention of the state is to protect, but being desperate times there may be a chance for the Government to use these personal data for massive surveillance. If not by the Government, there may be a chance for the third-party intervention by breaching the security fire walls. Though it is an interim guideline by the center to the state, there is a danger of misuse of data, which results in the violation of the fundamental right – Right to privacy guaranteed under Article 21 of the Indian constitution.
[1] Unique Identification Authority of India & Anr. v. CBI Special
Leave to Appeal (Criminal) no. 2524 of 2014, the Supreme Court in an interim
order held that the Unique Identity Authority of India should not transfer
any biometric information of any
person who has been allotted an Aadhaar number to any other agency without
the written consent of that person.
[2] People’s Union for Civil Liberties V. Union of India, AIR 1997 SC
568.
[3] The Rules under section 69 of the Information Technology Act, 2000
provide that service providers or their
employees who intentionally and
without authorisation attempt to intercept, authorise, or assist any person to
intercept information in transmission
at any place within India will be punished according to the relevant
provisions.
[4] As per Section 24 of the Indian Telegraph Act,1885.
[5] Under Art. 21 of the Constitution.
[6] AIR 1963 SC 1295.
[7] (2017) 10 SCC 1.
[8] 1975 SCR (3) 946.
About the Author: This post is prepared by Sathiyanathan S, Law student at Government Law College, Coimbatore. He can be reached at sathiyanathansubbaian@gmail.com
MyLawman is now on Telegram (t.me/mylawman) Follow us for regular legal updates. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter, or join our WhatsApp group. You can also subscribe to our Newsletter for Email Updates.
0 Comments