Crucial phase for Right to Privacy in India; new rules threaten fundamental right and freedom

The next three months are going to be crucial from the point of view of individual privacy. The government has informed the Supreme Court, hearing a plea by social media giants Facebook and Whatsapp for transfer of several cases involving decryption of private messages of their users from high courts to the apex court, that the rules governing the intermediaries would be finalised before the next hearing, which is scheduled for next January 15.

These rules will be most important for the privacy of individuals as the government is expected to arm itself with powers to intercept any message exchanged between users using the social media platforms citing threat to national security or other related grounds. The new rules also propose to make it compulsory to link social media accounts with Aadhaar.

The government insists that such rules are necessary to fight pornography and other internet vices as well as terrorism and anti-national activities. The argument is that terrorists and other criminals have no right to privacy. Fair enough, but that throws up the equally important issue as to who is a terrorist

The approach suffers from a major fault that it could assume everyone to be a potential terrorist or criminal until proved otherwise and puts the onus on proving otherwise rests with the individual. This is simply preposterous and against all norms of individual freedom and principles of democracy. It gives the state unfettered freedom to brand anybody as a potential offender. The rule of law assumes exactly the opposite: everyone is innocent until proved guilty.

The government has been pushing its agenda against privacy and individual freedom against stiff resistance from all those who value the rights of the individual. It has a tough task at hand as the courts have been consistently upholding the individual’s rights to privacy. Yet, the final word on this has not been said and that is what causes the concern.

A nine-member Constitution Bench had declared privacy as a fundamental right associated with life and dignity under Article 21 of the Constitution. But relentless efforts on the part of the government to invoke national threats to undermine such right have found success in getting the courts to take a flexible approach. Some of the recent judgments have given conflicting signals.

A three-member bench of the Supreme Court itself had ruled earlier this year that the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. The verdict came in a case that brought up the ‘goings-on in the dark web’ and the bench that considered it included Chief Justice Ranjan Gogoi.

The issue raised in the case was whether a judicial magistrate can order a person to give a sample of his voice for the purpose of investigation of a crime. The bench observed, "The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion… the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us."

Interestingly, Bombay High Court, this week granted relief to a 54-year-old Mumbai based businessman and quashed three separate orders passed by the Union Ministry of Home Affairs allowing Central Bureau of Investigation to intercept phone calls of the petitioner businessman in a case of bribery involving an official of a public sector bank. A division bench of Justice Ranjit More and Justice NJ Jamadar directed the Central Bureau of Investigation to destroy the copies of the call recordings.

The verdict was based on the Supreme Court judgement in the 1977 People's Union for Civil Liberties case and the nine-judge constitution bench's decision infamous K S Puttaswamy case.

The nine-judge bench had contemplated a test for ensuring that the right to privacy of an individual is not infringed upon by applying the principle of proportionality and legitimacy. The conditions included the requirement of necessity a legitimate aim in a democratic society and procedural guarantees against abuse of such interference.