PRABHAKAR TIMBLE
These are hard times to speak of democracy, freedom and liberty. When dissent is viewed as sedition, democracy gets purged. These years have been tough for those espousing basic human rights. They get graded as anti-nationals and foreign agents. Just a murmur on an isolated issue of the governmental lockout on democratic freedoms and personal liberty of ordinary citizens in Jammu & Kashmir for over 100 days invites the cap of being terrorist friendly or Pakistani. In recent months, even the higher judiciary behaves passive and steps in reluctantly to assert liberties. Whether it is the political abuse of state enforcement agencies demanding custodial interrogation of high ranking politicians or the outpour on the collapse of the justice system in J & K, the courts are hardly perturbed. The fourth democratic pillar is rejoicing its new comfort role of being the errand boy and service agent of the ruling powers ever ready to provide pre-sales and after-sales tune-up.
Times in India are getting ‘Modified’, even as they get ‘Trumpified’ in the United States. Democracy and freedom need to be tamed by men like Narendra Modi and Donald Trump is gaining support from the aspirational classes and surprisingly overseas Indians who themselves are full toss beneficiaries of free and liberal values. This cannot be their anger against democracy but could largely be the feeling of remorse of losing roots in the land of birth. These groups want the best of the West and at the same time they get caught up in strange guilt of their next-generation shedding the traditional ‘Indianness’. Community events like Howdy Modi hosted by Texas India Forum provide compensatory emotional reliefs to negotiate with the pent up frustrations due to disconnect with the soil which houses their relations, traditions and deities. The Indian PM holding hands with the US President at a private summit which is otherwise a billed PR exercise becomes an event extraordinaire for media and journalists. That the Indian PM has not addressed a single formal press conference for over five years with the home media does not bother the professionals in journalism.
The national political scene today is beset with sounds of undeclared emergency and attacks on individual freedoms by the state instrumentalities. The state agencies are also found wanting in dealing with private policing by self-professed nationalist groups invading into individual liberty. In fact, the governmental machinery is accused of acquiescence with these private armies. With the multiple identity cards and now the National Register of Citizens (NRC), India’s common man is perennially kept on toes to prove citizenship and brought to the knees of bureaucrats and politicians.
The current addition is the allegation of Pegasus spyware surveillance and its deployment to snoop on journalists, human rights activists and political opponents. This has come to light after a WhatsApp suit in US against the Israel-based firm named NSO for using WhatsApp servers for purpose of conducting surveillance and following an alert to their users targeted through the use of the spyware. It is surprising that the Pegasus revelations have not caught the media eyeballs in a significant way judged in the context of its impact on liberty and privacy of individuals. The issue will be debated before the Shashi Tharoor-led parliamentary standing committee on Information Technology. However, all the BJP MPs on the committee voted against any such discussion.
As the law stands, the government has the privilege of interception due to restrictions as stated under Article 19(2) of the Constitution. Government is empowered to lawfully intercept in the interests of sovereignty or integrity of the nation; security of the State; friendly relations with foreign states; public order and public emergency or safety. Primarily, there are around ten agencies such as IB, ED, CBDT, DRI, CBI, NIA, RAW, NCB which can steal and the stolen information is admissible as evidence. However, the courts must be satisfied that there has been no tampering with the recorded statements and further the same is legally obtained. This power is granted under Section 5 of the Indian Telegraph Act and Section 69 of the Information Technology Act, 2000.
The guidelines for interception or tapping have been laid down in the high profile case People’s Union for Civil Liberties v/s Union popularly known as ‘Phone Tapping Case’ wherein the writ petition was filed in the wake of reports on tapping of politicians’ phones at the behest of the ruling party by the CBI. Holding that interception is a serious invasion on an individual’s privacy, the Supreme Court underlined that order should come from Home Secretary of central/state government with strong reasons. Such order needs to be reviewed by the Cabinet for it to be in force before two months. But, Section 32 of the Prevention of Terrorism Act, 2002 empowers an Investigating Officer to authorize if he believes that tapping can provide evidence of a terrorist act.
However, much we attempt to hold the right to privacy as sacrosanct and inalienable, the growth of sophisticated communications technology will continue to pose new and formidable challenges to privacy. Goggle, WhatsApp and similar platforms are networks obliterating privacy. On the other side, the tilts towards nationalism and patriotism are putting group interests to the forefront and legitimizing inroads into individual liberty and privacy. As terrorism and drug trade thickens on the global map, the demands for interception and surveillance are gaining global acceptance. The same methods get misused for political, corporate and other unauthorized snooping. All this would necessitate better laws and regulatory mechanisms to protect individual liberty and privacy from the whirlwind of nationalism, terrorism and drug trade.
