State fails to protect citizens’ privacy
BY ASHWANI KUMAR IN THE TRIBUNE
Allegations of phone tapping through sophisticated electronic devices disrupted the functioning of Parliament last week. The Indian state has the responsibility to secure the citizens’ constitutionally guaranteed right to privacy. Democracy demands a proactive role of the state in preventing the invasion of the most cherished of all human rights that defines our identity and ensures our dignity. While the government has allayed the Opposition’s apprehensions, the fact remains that the easy availability of sophisticated snooping and surveillance devices can be increasingly resorted to by desperate individuals and non-state actors to render futile our right to privacy repeatedly affirmed by the apex court as an integral component of the right to life itself as envisaged in Article 21 of the Constitution. Thus, the questions we must ask ourselves are: Will it suffice for the government of the day to argue that it respects the citizens’ right to privacy and will not authorise its infraction except for overarching reasons of national security and unity of India, while others (non-state actors) with the requisite equipment are allowed to breach the sanctity of one’s private space?
In the face of repeated allegations of violation of the citizen’s right to privacy and dignity by entities other than the state, can we rest content with the safeguards laid down by the Supreme Court for interception of tele-conversation in the PUCL vs.UOI (1997), which guidelines refer only to telephone tapping by the Government of India, through the Home Secretary and reviewed by a committee chaired by the Cabinet Secretary ? Is there a credible system of accountability of the Cabinet Secretary or the Home Secretary for a possible lack of diligence and care in authorising phone tapping? What can be the recompense for the wronged citizen who has had his privacy invaded without cause for long periods? Creeping encroachments by the state in the privacy domain for want of adherence to the imperatives of national security and indifference to the brazen onslaughts on our right to privacy, free speech and personal dignity by non-state actors, including conspiring individuals and corporates impel an urgent review of the processes to ensure that constitutional rights are indeed treated as sacrosanct and beyond the reach of lesser men insensitive to the values of a liberal society.
It is inherent in the dynamics of law and nature of the judicial process that notions of justice and freedom change to meet the demands of social evolution. But must we allow inviolable human rights that define our dignity, including the “right to be left alone” be encroached upon beyond a clear constitutional endorsement? The reality of international terrorism and an extended reach of non-state actors to imperil national security and indeed the enhanced threats that nation states face to their unity and integrity are often cited in justification of the state’s prying into our daily existence. Even so, can we, without scarifying the first values of our Republic, condone the state’s action or inaction responsible for endangering the privacy and liberty of the masses in order to checkmate a few deviants?
The apex court having equated the right to liberty and right to privacy as integral to the right to life in Article 21 (Kharak Singh 1964) is expected, as the keeper of the constitutional conscience, to ensure that not just the state but all others are chained to the discipline of law with a heavy price to be paid by those responsible for infractions of the first principles of the Indian state. Above all, it is the eternal vigil of our informed citizenry that will secure our hard-won and well-deserved freedoms. Indeed, the right to privacy as a fundamental right implicit in the concept of ordered liberty as reiterated by the Supreme Court in Govind Vs. State of MP (1975) is to be protected not only against the state but against all others, save in the interest of national security and the unity of the nation as narrowly construed. Leo Valiani the historian, makes the point thus: “Our century demonstrates that the victory of the ideals of justice and equality is always ephemeral, but also that, if we manage to preserve liberty, we can always start all over again…. There is no need to despair, even in the most desperate situations.” Legislators and parliamentarians are collectively required to face the challenges of the new age – “the age of extremes”— to ensure the lasting relevance of our non-negotiable values. We must accept that certain rights and laws which protect these rights are more permanent than others and owe no apology to the transient impulses of the moment. The leadership of the UPA, which has initiated a transformational agenda of national renewal, can be legitimately expected to take further initiatives to secure the foundations of our liberal democracy by securing the dignity of citizens.
The writer is a Congress member of the Rajya Sabha.