B L Razdan
In case of famous people, it is right for the public to be informed about their private behavior. (Press Complaint Commission, London)
Two veteran journalists have filed a petition in the Supreme Court seeking a court-ordered investigation into the Pegasus spyware revelations. During the past fortnight, a global consortium of 17 media groups, have been publishing a series known as the Pegasus Project. The project is based on a leaked database of phone numbers of people who were either persons of interest or forensically identified as having been targeted by clients of the Israeli NSO Group’s Pegasus spyware. In India, forensic evaluation showed that at least 10 devices – belonging to a political strategist, senior journalists and others – had either been successfully infected or witnessed a hacking attempt. The petition seeks a court order to the Government of India to reveal whether it or any agencies related to it had obtained a license for or used the Pegasus spyware, and whether the spyware was used at any point to carry out surveillance on Indian citizens.
The Pegasus row is vital for the common man because the right to privacy was declared as a fundamental right by a nine-judge Constitution bench headed by the former Chief Justice of India J S Khehar in 2020. This is now well-settled law, which implies the government may be flouting the law declared by the Supreme Court. However, the Union Home Minister declared in public that no law is permanent or steady. Said he: “It is not made of steel. The law is made by Parliament. It goes to the people, to the ground. A lot many suggestions come once it is implemented. So many laws have been amended after receiving the people’s suggestions”. This leads to the inescapable inference that although the right to privacy is a fundamental right, the government has the right to violate it in the interests of what it will always claim to be national security.
While the Indian society permitted private moments to the individuals, it hardly recognized something like the right to privacy until recently. That is why the Indian Constitution does not expressly have a clause guaranteeing privacy. It was only through the instrument of interpretation that the Apex Court read the right to privacy into Article 21 dealing with Personal Freedom (Protection of life and personal liberty), which, it held, was broad enough to cover privacy as well.
However, it has rather become trite to say that 9/11 changed everything. Yet it is as true for the West as it is for the global South. 9/11 kick started the downward spiral of individual privacy rights across the entire internet. It also ushered in a false dichotomy of choice, that in choosing between security and privacy, it was privacy that had adapted to the new realities, or so we’ve been told. And the extent to which individual privacy rights are protected will determine whether democracy continues to succeed, or inches towards tyranny or anarchy. The challenge then is to balance the legitimate needs of the state to secure its sovereignty, while at the same time, protecting the most valuable right of its citizenry.
It is only too well known that Indian’s don’t take their privacy very seriously. But with the evolution of the democratic polity, the concept of privacy is assuming importance and as more and more people improve their economic status, they will start demanding the right to privacy and clamour hoarse for the right to be free of surveillance without just cause. Realizing this, the Court carved out two exceptions to the above rule for material based on public records, and information about public official’s conduct “relevant to the discharge of their duties.”
The right to protect an individual’s privacy has been enshrined in Art 12 of the Universal Declaration of Human Rights, which states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” This right has also been articulated in the International Covenant on Civil and Political Rights, 1976, which enjoins upon the member states to give effect to the prohibition against such interferences as well as to the protection of such rights.
The right to privacy, however, like other rights, cannot be an absolute right. The UNGA report says that once an individual is being investigated or screened by a security agency, personal information is shared among intelligence agencies for reasons of counter terrorism, the right to privacy is naturally and automatically affected and the states, in such situations, have a legitimate power to limit the right to privacy under the international human rights law. That is why in the famous Nira Radia case, while invoking right to secrecy it was submitted on behalf of Ratan Tata that while he had no issue with the government recording the phone conversations, it had a responsibility to preserve their secrecy. Argued his counsel, “Conversations can be recorded by the government. But the government owes responsibility to the citizen to maintain secrecy” Countered Prashant Bhushan, the well-known Advocate, on the grounds that the nature of the conversations was not personal but in relation to public activity. These were between a lobbyist and bureaucrats, journalists and ministers. He stressed the importance of releasing these tapes into the public domain to show glimpses of all kinds of fixing, deal-making and show how the whole ruling establishment functions. According to him it is absurd even for Ratan Tata to claim that this is an invasion of privacy.
Even the RTI Act, it would seem, has failed to address the legal protection for the right to privacy. Perhaps, rules regarding privacy can be added to the Act. It can be defined by answering the questions: (i) what is ‘personal information’? (ii) what is it’s relation to public activity or public interest? (iii) what is the unwarranted invasion of the privacy of an individual? and (iv) what is the larger public good? Expanding on these four points can provide greater legal protection for the right to privacy.
Someone aptly remarked, “It’s a great reminder. There is nothing wrong with asking questions and wanting answers, especially in regard to privacy.” Countered Ben Franklin, “It is the first responsibility of every citizen to question authority.” Another privacy enthusiast said, “Oh really? I do all sorts of things I don’t want anyone to know about, nothing crazy or illegal, but personal and private. I don’t want those things broadcast. Thanks.” To this, Eric Schmidt, the CEO of Google responded by saying, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”
(The author is formerly of the Indian Revenue Service, retired as Director General of Income Tax (Investigation), Chandigarh.)
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