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Post at: Sep 08 2021

Right to Privacy and Concerns of Pegasus Spyware

Recent

  • Lok Sabha was on August 11, 2021 adjourned sine die, two days ahead of schedule, bringing to an end a tumultuous Monsoon session that was disrupted every day by opposition protests over the Pegasus snooping allegations.
  • Several members of both House have been pressing for a discussion and probe into allegations of surveillance through Israel based Pegasus spyware as it is directly in clash with the fundamental right of privacy enshrined under Article 21 of the Indian Constitution.

What actually Privacy is?

  • According to Black’s Law Dictionary “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.

Right to Privacy and Global Recognition

  • The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.

Evolution of the Right to Privacy as a Fundamental Right in India

  • The recognition began with case of Kharak Singh v State of Uttar Pradesh, 1962 where the majority opinion was that the right of privacy is not a guaranteed right under the constitution. But in this case the discussions about the right to privacy to be guaranteed as a fundamental right came with the dissenting opinion given by Justice Subha Rao.
  • Later, the part of the old judgment (right to privacy is not right under constitution) has now been overruled in the August 2017 landmark decision of K.S. Puttaswamy v. Union of India in 2017 in which a nine-judge bench of the Supreme Court held unanimously that - Right to Privacy is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes.
  • The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Restrictions under Right to Privacy as per the judgement of Supreme Court  

  • The right may be restricted only by state action that passes each of the three tests –
  1. Such state action must have a legislative mandate;
  2. It must be pursuing a legitimate state purpose; and
  3. It must be proportionate i.e., such state action- both in its nature and extent, must be necessary in a democratic society.

Concerns Related to Privacy in India

  • Having no privacy is like under constant surveillance you will never enjoy freedom and liberty which are your fundamental rights.
  • Unregulated access to data can lead to the suppression of dissent and censorship. Journalists, Human Rights Activists etc. can be put under an invisible prison of surveillance.
  • People who are leading a lifestyle which is deemed a taboo by a certain section of the society might be vilified or targeted. For example homosexuals.
  • Surveillance by Police also causes a concentration of power and puts civil liberties at serious risk.
  • Law enforcement officials across the world are also accused of unauthorised data collection, data mining to predict travel plans etc. to put citizen’s reputation at risk.
  • Private details like travel details, shopping history financial details etc. are used to create online granular profiles which are then sometimes used to spread specifically crafted fake news. This has increased the potency of fake news in the country.

Analyzing the Surveillance Law in India

  • The absence of privacy law or any independent body like the Privacy Commission deprives Indians of necessary safeguards.
  • It was in 2012 when the Planning Commission published a report by Justice AP Shah on Privacy Issues. According to the report, the national privacy principles of India should be the following:

  • With the help of Privacy Commissioners and Self-regulating organizations (SROs) and co-regulation, it would be easy to implement and enforce the policies in a wide range of industries.
  • Just like the IT rules 2021, an Alternate Dispute resolution Mechanism should be developed that includes provisions for offenses, penalties, and remedies in the Privacy Act.
  • With respect to Section 67C of the IT Act, the data retention period must be specified. Not mentioning the time period to retain the data can easily create chances for potential abuse and deprive a citizen from their “right to be forgotten”.

Need for a Privacy Law in India: Privacy Delayed is Privacy Denied

  • It’s been more than two years since the people of India have got the Right to Privacy as the fundamental right but still the government has failed to provide a law to exercise this effectively.
  • The Personal Data Protection Bill 2018 has still not become an Act.
  • Since the private bodies do not constitute ‘state’ within the meaning of Article 12 and the Indian Constitution does not allow writ remedies against the purely private bodies, Indians have very limited recourse available under Section 43A of IT Act, 2000 read with Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (Privacy Rules).
  • Indian individuals can claim compensation from the corporations only if there are issues with the data related to ‘sensitive personal data’ which only includes defined categories of information like instance, passwords, health data, financial data, or biometrics.

Conclusion

  • The government is accountable for protecting constitutionally guaranteed rights; therefore, cybersecurity breaches need an independent inquiry.
  • India immediately needs to enact a data protection law that upholds the constitutional right to privacy. Implementing the Right to Privacy on the ground will be a gift from the government to the citizens of the largest democratic country.
  • The current surveillance laws already provide conditions under which surveillance is permissible; however, the IT Rules that misconstrue the law’s objectives need to be revoked. Surveillance technologies that are invasive beyond reasonable limits, like Pegasus, should be banned. Reforms are also required to ensure judicial oversight over public agencies.

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