Privacy under fire

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 that the rules governing the intermediaries would be finalised before the next hearing, which is scheduled for 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 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 to 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 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 must bow down to compelling public interest. The verdict came in a case that brought up 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."

In an interesting Bombay High Court session this week, relief was granted to a 54-year-old Mumbai-based businessman and three separate orders passed by the Union Ministry of Home Affairs were quashed which would allow 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 in the 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 as a legitimate aim in a democratic society and procedural guarantees against abuse of such interference.

(Views expressed are strictly personal)