Watching Big Brother: Safeguards against snooping don’t hold up in too many cases

By: |
March 16, 2021 6:10 AM

The Rajasthan episode is also a warning; when the political leadership of a government desires it, the people manning the bodies that are supposed to check against the government’s excesses may, more likely than not, quietly toe the line.

Last year, the cellular operators’ association had complained about the government asking for bulk call data records (CDR) in many telecom circles.

The statement of the Ashok Gehlot government on phone-tapping, against the backdrop of leaked conversations between a Union minister and Rajasthan Congress leaders which took place in the context of infighting in the state unit of the Congress party, are a clear indictment of the so-called watertight protocol and checks on government surveillance.

The Gehlot government has claimed that “Telephone interception has been done … after obtaining permission from the competent officer” in its reply to a BJP MLA who had asked, as reported by The Indian Express, if it was true that “phone tapping cases had come up in the last days”. This flies in the face of the judgment of the Supreme Court in KS Puttaswamy, in which the apex court had said that interception has to meet the rigour of “necessity, proportionality and due process”.

To be sure, the state government might have set up a review committee under the chief secretary—as it claims it has—but surely defection talks between Gehlot’s party comrades and a rival party don’t amount to an imperative for ordering phone-tapping? In clearing such requests, any review committee has to check whether the tapping order passes the test laid down by the Telegraph Act, that the matter has to be one of “public emergency” or pertain to “public safety”; it needs to check if it meets the spirit of the Act and whether it transgresses the citizens’ right to privacy. Indeed, in the PUCL case, the SC had ruled that the right to “hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’”.

The Rajasthan episode is also a warning; when the political leadership of a government desires it, the people manning the bodies that are supposed to check against the government’s excesses may, more likely than not, quietly toe the line.

As the Justice BN Srikrishna panel on data protection had highlighted, citing an RTI reply, the review committee “has an unrealistic task of reviewing 15,000-18,000 interception orders in every meeting”. Such a state of affairs has ensured, in the panel’s words, that India “lacks sufficient legal and procedural safeguards to protect individual civil liberties”.

Against such a backdrop, of marginal safeguards, blatant violations of citizens’ privacy become a frighteningly real possibility. Last year, the cellular operators’ association had complained about the government asking for bulk call data records (CDR) in many telecom circles; while the government had defended it as something it required to study so as improve the quality of networks, the association had pointed out that the data was being asked for without following the normal procedure for this.

The Delhi Police using various government databases for facial recognition, similarly, may be the need of the day, but enough checks need to be put into the system to prevent abuse; more so since facial recognition is not even an exact science so far. To prevent an Orwellian state, big brother needs to be watched as well.

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