Privacy, in its simplest terms, allows each human being to be let alone in a core which is inviolable. The expression “let me alone” explains privacy in its essence. The legal battle for protection of privacy as a fundamental right started in 1954 when the Supreme Court (M.P.Sharma’s case) held that the Constitution of India did not recognize the right to privacy. The question was again raised in 1964 when the Apex Court reiterated the earlier view (Kharak Singh’s case). Subsequently, the Apex Court in certain decisions (Govind-1975; R.Rajagopal-1994; PUCL-1997) recognized the right to privacy as a derivative right being part of the fundamental right to life and liberty guaranteed under Article 21 of the Constitution. Hence, a conflict of opinion arose between the verdicts rendered by the Apex Court. In order to resolve the conflict, the issue was taken up in Puttaswamy-1 (2017) by a Bench of nine Judges. By a landmark judgment, the Supreme Court held that the right to privacy was a basic and natural right inhering in every human being and thus is a fundamental right being part of the right to life and liberty.
The judgment in Puttaswamy-1 is amongst the most significant judicial verdicts rendered by the Apex Court since India became independent. Privacy is an invaluable right for every citizen to enjoy against State and non-State entities. With the invasion of the Internet in our lives, the right to informational privacy which is specie of the right to privacy assumes even greater importance in our lives. A very large section of the Indian population uses the Internet to interact, communicate, and transact for availing services and making online purchases.
The right to privacy is not absolute and can be intruded upon for legitimate State interests such as for investigation of certain serious criminal offences. However, the intrusion must be for real and legitimate objectives and should not be beyond what is necessary for investigative purposes. But who decides the legitimacy and issues of proportionality etc.
Given the significance of the right to privacy of a citizen and the legitimate State interest of finding the truth in criminal investigations, the question I seek to address herein is how to enforce the right to privacy against law enforcement agencies such as the police, ED, DRI, and CBI. I have taken into consideration certain situations here, hypothetical and actual, in order to make out a case for establishing independent privacy tribunals to strike a fine balance between the right to privacy and legitimate State interest of getting to the bottom of the truth in criminal investigations.
Let’s start with Rule 4(2) of the Intermediary Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules, 2021” in short). As per this Rule, the Competent Authority can order a significant social media intermediary (WhatsApp, Facebook etc) to identify the first originator of information for the purposes of prevention, detection, prosecution or punishment of offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years. The ambit of Rule 4(2) is very broad and hence ought to be implemented with extreme care and caution so that the right to privacy is finely balanced with finding the truth in criminal investigations pertaining to the above offences.
The implementation of Rule 4(2) has been entrusted to Courts and the Competent Authority. Courts in India, as we all know, are independent and have an understanding of the law and are expected to implement the Rule in letter and spirit keeping in view the balance between the right to privacy and legitimate State interest of finding the truth in criminal investigations. However, the question is whether the Competent Authority can play such a role as the Courts would. Who is the Competent Authority? The Competent Authority, as per the said Rules, constitutes of the Secretary in the Ministry of Home Affairs, in case of the Central Government; or the Secretary in charge of the Home Department, in case of a State Government or Union Territory, as the case may be. In unavoidable circumstances, such order may be issued by an officer, not below the rank of Joint Secretary of the Government of India, who has been duly authorized by the Competent Authority. The“Review Committee” means the Review Committee constituted under rule 419A of Indian Telegraph Rules, 1951. Hence, as under the Telegraph Act, 1885 read with Rule 419A of the Telegraph Rules, 1951, the Competent Authority under the Intermediary Rules, 2021 consists of a bureaucracy under a Ministry of the Government.
In my view, there are justifiable reasons for replacing the Competent Authority with an independent privacy tribunalheaded by retired judges of the Supreme Court and High Courts.
Firstly, the Competent Authority consists of bureaucrats who may not have a clear understanding of the nuances and scope of the right to privacy and the requisite balance between the right to privacy and legitimate State interest of finding the truth in criminal investigations. Moreover, the bureaucracy could possibly lean in favor of requests by law enforcement agencies rather than be protective about the privacy of citizens. A case is thus made out for establishing independent privacy tribunals consisting of retired High Court and Supreme Court Judges, which should be entrusted with the task of deciding upon the requests of law enforcement agencies to social media intermediaries to reveal the first originators of information pertaining to the offences stipulated in Rule 4(2).
Another ground in favor of independent privacy tribunals for deciding upon requests of law enforcement agencies to social media intermediaries to reveal the first originators of information pertaining to the specified offences, is the likelihood of allegations of bias by opposition parties as to the legitimacy of such requests and decisions of bureaucrats (Competent Authority) thereon. Many of the privacy disputes are likely to behigh voltage slugfests between political parties. And opposition parties are likely to allege bias against the Competent Authority.
The Pegasus case is a classic one where the opposition parties wanted an independent authority to probe into the issue whether the Government agencies were involved in the snooping using the Pegasus technology. The Apex Court has appointed an independent body of experts to probe into the allegations. In fact the Government of India had itself stated before the Apex Court that it would set up an independent committee of experts to inquire into the allegations of snooping. The Apex Court has decided in favor of an independent body of experts to conduct the inquiry into the Pegasus dispute between the Government and the opposition parties. The Court has selected the experts to hold the inquiry. The Pegasus case demonstrates that all stake-holders including the Government and opposition parties are in favor of an independent body of experts to inquire into the alleged violation of the right to privacy. Above all, the Apex Court has formed a body of independent experts to find the truth in the allegations of snooping. In my view, the Competent Authority appointed under the Information Technology Act, 2000 and the Telegraph Act, 1885 has lost its significance in today’s scenario when the right to privacy has been elevated to the status of a basic right inhering in every human being and thus as a fundamental right being part of the right to life and liberty. What is the point of raising the right to privacy to the status of a fundamental right if it cannot be enforced by an independent tribunal comprising of retired judges? Why should this be left to the bureaucracy of the country that may not understand the nuances and significance of the right to privacy apart from being vulnerable to allegations of disregarding privacy of citizens and leaning in favor of directions by law enforcement agencies to social media intermediaries to reveal the first originators of information pertaining to the specified offences under investigation? A case is thus made out for amendments in the Intermediary Rules, 2021 for replacing the Competent Authority comprising of bureaucrats with a privacy tribunal comprising of retired judges of the High Court and Apex Court. WE THE PEOPLE OF INDIA must stand up for enforcement of the right to privacy by an independent privacy tribunal rather than our right being decided by Competent Authority alias the bureaucracy. Disputes pertaining to violations of the right to privacy of citizens are set for an exponential rise in the times to come, hence, the duty to protect the right must be entrusted to an independent privacy tribunal, otherwise, the fundamental right to privacy may become illusory.
Vivek Sood , Senior Advocate