Right to Privacy and Surveillance - Seeker's Thoughts

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Wednesday, 26 December 2018

Right to Privacy and Surveillance

Surveillance meant a close observation often referred to a suspected criminal or individual. Technologies have brought changes- especially when the digital technologies took over the normal life. Individuals are more connected and information is accessible to people.
Earlier opinion used to be shared in a group, now those groups have become online communities. Terrorism found its target through digital connects and there is no denying that online activities should be noticed. However, the question is what about the privacy of individual? How much surveillance can be allowed?

The existing surveillance system in India is very complex and confusing. The first one is for telephone- the telephone surveillance is sanctioned under the 1885 Telegraph Act. The Second is for electronic- the electronic surveillance comes under 2000 Information Technology Act.

What are the regulations for Surveillance?
Supreme court in 1997 has enacted that in both cases – either telephone or electronic, if the surveillance is going to be done, the surveillance request have to be signed by an official who has at least the level of joint Secretary. This system remains under bureaucracy and decision about surveillance is taken without Judicial or Parliamentary Supervision.



The Vague System
The Surveillance regime remains Vague as under 69 of IT Act, the ground of surveillance has been taken from article 19(2). The machinery and grounds for surveillances should be much more elaborative. 


The non-transparent system
Almost no information is available about the bases on which surveillance decisions are taken and what the legal standards are. In 2014, RTI request revealed that on an average 250 surveillance requests were approved every day. There should be much more elaboration about it.

Is the right to Privacy absolute?
The right to privacy is not absolute,  and surveillance is essential to ensure the national security, and pre-empt terrorist threats. However, there should be a balance between values of privacy and security. 
A heavily bureaucratized and minimally accountable regime of surveillance does nothing to enhance security, but does have significant privacy costs.
The reasonability of right of privacy should be based on –‘how, when and what kind of surveillance’.
The bureaucratic machinery should be accountable to get the result, and this will prevent the significant privacy cost and security will be enhanced. Government should be accountable and should be transparent in working so that surveillance does not go overboard with information. Too much information can even distract from vital information. Therefore, there should be an appropriate balance between fundamental rights and national security. Smaller infringement upon fundamental rights can work to get national securities in some cases.