Posted by INTRODUCTION AND THE DEVELOPMENTS
“If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion”. The line as stated above bear sheer relevance with reference to the recent event that has materialized in the form of the PEGASUS scandal and for the sake of brevity and staying within the ambits of the context the line above seems very apt.
Delving further, it is important to take heed of the initial development process and a brief insight as to the relevant parties involved with the first one being the NSO Group which is one of more than 520 surveillance technology companies identified by Privacy International, which sells products and services specifically to government customers for enforcement of Law and for information gathering purposes. NSO Group is one of 520 surveillance technology businesses listed by Privacy International that sell products and services to government customers for law enforcement and data collecting. NSO Group was established in Israel in 2010[1]
As the developments surfaced further worldwide in the form of attacks made in August 2016, as disclosed by the Citizen Lab disclosed the findings of an investigation, which revealed that UAE officials had used NSO Group’s Pegasus spyware to target Ahmed Mansoor, a prominent human rights campaigner. Citizen Lab presented the findings of an investigation in February 2017 that suggested Mexican authorities had utilised NSO Group’s Pegasus spyware to target individuals involved in a high-profile “soda tax” campaign in Mexico[2].
As concerning the domestic context, among the massive data leak that took place there surfaced names of various prominent Indian Journalists upon whom the surveillance was done. It must also be noted that in 2019 Whatsapp revealed an infirmity within the system as per which 1400 lawyers and Journalists throughout the world were targeted by the same
ANALYSING THE LEGAL CONTOURS
The benchmark decision[3] declared Right to Privacy as an inalienable right of an individual and inherent to Article 21. However, there are provisions as per which surveillance mechanism by the government can be initiated. One of the existing legislation is the Indian Telegraph Act, 1885 where upon the bare perusal of Section 5(2) of the same empowers the Public authority who shall be empowered to intercept the communications as made by any individual provided that the same must be done for the expedience of Public safety and the situation must give the impression of “Public Emergency”. The grounds as laid down cannot be construed as reasonable enough and gives the relevant authority a wider ambit than what is actually required and this was well acknowledged by the Supreme Court in 1996 thereby creating Rule 419A of the Indian Telegraph Act, 1885 and thereby making it a part of the Telegraph Act, 1885[4] and thereby creating an established procedure which also however does not define certain things as in the form of the definition of “Unavoidable Circumstances” etc. However, a sliver of hope can be seen as all the acts of interception must be carried out in a reasoned fashion.
Information Technology Act, 2000, Section 69-A of which empowers the Central or State government to direct any agency of the appropriate government to conduct surveillance and intercept etc. and the preconditions come in the form of:- In the interest of sovereignty and integrity of India, Security of the State, Friendly relations with foreign states, To maintain public order, Prevent incitement to the commission of an offence and another addition by the virtue of Section 69 as “Investigation of a Crime” which raises a great concern as no well defined ambits of the term has been established
COMPELLING STATE INTEREST- THE RELEVANCE
The compelling state interest must be taken into account as the same can be surmised as whether a State interest is of such paramount importance as would justify an infringement of the right[5]. The government does cite the security of the state as one of the valid ground which necessitates violation of Right to privacy to that extent, however the current situation nowhere gives such an impression and the revelation is clearly indicative of the emergence of a surveillance state as no requirements have been satisfied which gives us an impression of an emerging grave danger to its citizens. However it cannot be totally discarded that the government may be given an edge over the matters of national security as observed as:- “Privacy is the terrorist’s best friend, and the terrorist’s privacy has been enhanced by the same technological developments that have both made data mining feasible and elicited vast quantities of personal information from innocents: the internet, with its anonymity, and the secure encryption of digitized data which, when combined with that anonymity, make the internet a powerful tool of conspiracy. The government has a compelling need to exploit digitization in defense of national security”[6]
It must be noted that the above observation operates on the premise that the surrounding circumstance must mandate surveillance however, with reference to the events occurring in the contemporary paradigm summed with the emergence of technology has endowed the state to indulge in surveillance which remain beyond an imaginable extent[7]
In the United States the standards of a Compelling State Interest requires presence of a legitimate state interest and most importantly the legislation must be narrowly tailored to achieve the objective. It is also safe to say that the test varies from case to case basis and thus the nature of privacy violation necessitates the inquiry into the same and the level of scrutiny that is to be applied in the same[8]
CONCLUSION
It must be noted that India cannot boast of a robust legislative arrangement for ensuring the digital rights and privacy aspects that flow from the same as still a lot of loopholes remain in various legislations. However, over the period of time the interpretation of and the acknowledgement of rights have gone on to be quite magnanimous in nature. The aspect of a compelling and legitimate interest does arise only when its required so by the prevailing circumstances. However the unwanted usage of the same only ensures unwarranted intrusion into the citizen’s rights. The emergence of a digital world has opened a Pandora box and instances such as these lead us to consider the Cyber Space to be unsafe which can be changed if greater and stricter compliance measures are introduced for all the stakeholders involved as can be seen from ensuring compliance with GDPR rules and thus entailing a democracy where a harmony is maintained and a balanced interpretation is done for everyone.
[1] 2017. International Human Rights Implications of Reported Mexican Government Hacking Targeting Journalists and Human Rights Defenders. [ebook] PRIVACY INTERNATIONAL. [Accessed 22 July 2021].
[2] Supra note 1
[3] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017) 10 SCC 1
[4] People’s Union for Civil Liberties (for short “the PUCL”) v. Union of India [(1997) 1 SCC 301]
[5] Gobind V State of MP, 1975 SCR (3) 946
[6] Richard A. Posner, “Privacy, Surveillance, and Law”, The University of Chicago Law Review (2008), Vol.75, at page 251
[7] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017) 10 SCC 1 Pg. 503
[8] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017) 10 SCC 1 Pg. 310
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