The recent Pegasus spyware row confronting the government for alleged surveillance operation has exposed that even democratic governments enjoy unjustified and unconstitutional hacking into e-systems of benign individuals. Liberty has new friends in today’s governance. The right to post, to like, to forward and the right to hack. Communication, which has largely shifted from offline to online, has also surrendered our personal lives to state control. Communicating online is a necessity in the current dispensation of life, but it has also made citizens victims of unreasonable punitive action.
As it appears, in times to come journalists would assemble at one centralised government-controlled information centre to prepare their writeups for the press and the television news. The Internet is gradually closing one’s freedom to observe, analyse, discuss and generate a communication that Habermas the sociologist found was intuitively mastered to help reach an understanding towards an appropriate argument. Habermas referred to it as ‘communicative rationality’. While the Internet is a great assistive technology for everyone today from an illiterate and uneducated to a professional in the boardroom and Parliament, its users have created their own communicative expressions and languages; it is the most vibrant channel of connecting anyone nonetheless its therapeutic effect during the pandemic. On one hand it has transformed the world by generating transparency and information flow, on the other it has also become one of the greatest anathemas to personal liberty.
The 2010 case of Australian journalist Julian Assange sent threat waves across media people in the world. Sweden issued an international arrest warrant against him over allegations of sexual misconduct. Assange took asylum in the Ecuador embassy in London and established that this was a case of political persecution and on this ground he was not extradited to Sweden. It soon turned out that Sweden’s demand for extradition was merely a design to pull him out of London and then transfer him to the US where he was to be charged for hacking into a secret Pentagon computer network and publishing secret files of America’s international activities. Sweden finally dropped investigations as its demand for extradition became time barred or lost its criminal attribute because of a long period of effluxion. Assange continues to be victim of his investigative journalism which no government likes. In the meantime, journalists and even ordinary people in India have repeatedly been castigated and some have paid a heavy price for their posts and messages on social media. In June this year the Supreme Court quashed an FIR registered by Himachal Pradesh Police against journalist Vinod Dua for sedition, public mischief and other offences. Dua was charged with alleged seditious contents of a talk show broadcast on YouTube last year.Recently, a PIL filed by a veteran S.G. Vombatkere and many others demand that “a statute criminalising expression based on unconstitutionally vague definitions of ‘disaffection towards government’ is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) of the Constitution and causes constitutionally impermissible ‘chilling effect’ on speech”. One would eagerly wait to hear its outcome as social media posts have become linked to sedition and terrorist activities despite the fact that personal liberty is jeopardised if governance gets narrowed down to this understanding.
The battle for free expression and personal liberty is age old and every government irrespective of ideology has tried crushing their political opponents by using Sections 124A (sedition) and 505 (public mischief) of the IPC. The social media sites have only made their task simpler today through rushed investigations and swifter evidences on the basis of content postings. The Supreme Court’s first big encounter with the discourse on personal liberty was in the 1950s case A.K. Gopalan v. State of Madras. The Supreme Court, while convicting the communist A.K. Gopalan, established that Article 21, which guarantees a right to life and personal liberty, does not require the state to follow due process in its use of ‘preventive detention’. Such laws pertaining to preventive detention were immunised from the limitations placed on the legislature by other fundamental rights. The Gopalan verdict has since been overruled as the Supreme Court held that in Article 21 ‘Right to Life’ implicitly includes a guarantee of substantive due process which ought to be fair, just, and reasonable, untouched by the caprices of the state. In the case of Dua, the Supreme Court depended upon the Kedar Nath Singh case of 1962 reiterating that every journalist will be entitled to protection. In this 1962 case the apex court had overturned a Patna High Court ruling that upheld the conviction of Kedar Nath Singh, a communist party activist, for his alleged statements against the police and the Congress at a gathering in Bihar’s Barauni village on 26 May 1953.
In fact, social media sites, which have given voice to the ‘unheard’, have also created a deafening pool of resistance around governments which find themselves incapable of handling them other than imposing draconian laws which limit liberty. The other side of the government›s apparent capability deficit as a cause of threat to personal liberty is also a signal for ‘free hand’ that such government’s emit to their enforcement agencies and police. These agencies have a historical tendency to go overboard on retributive action such as they did in the 2012 Palghar case when two young girls were arrested for their Facebook posts. One messaged to the other questioning the shutdown in the city for Shiv Sena patriarch Bal Thackeray’s funeral and the other just liked it. The Sena activists went on rampage till these clueless girls were arrested using Section 66A of the Information Technology Act. This Section 66 (A) prohibits the sending of information of a “grossly offensive” or “menacing” nature through computers and communication devices’, had become handy for most state governments to book people over posts on social media that officials claimed were “seditious”, communally sensitive” or “abusive”. The free speech campaigner Aseem Trivedi’s arrest in Mumbai for displaying cartoons on his website and Facebook page that mocked Parliament and corruption in high places was another overblown case. This Section 66(A) was finally revoked in 2015, when the Supreme Court called it ‘unconstitutional’, but no one has been able to stop the police from using it repeatedly in UP, MP and many other states where the political power demands it.
Is the government justified in stifling free speech through spyware online surveillance of citizens? Is national security really under threat? Are these free speech people really seditious and anti-national? Justice Frankfurter, speaking for the US Supreme Court in the 1949 case of Wolf v Colorado, held, “The security of one›s privacy against arbitrary intrusion by the police … is basic to a free society…” History may still walk backwards into Semayne’s case (1603) that beautifully explains: “Every man’s house is his castle.” This sentiment forcefully featured in British Parliament in 1763 when William Pitt spoke to explain the primordial requirement of personal liberty: “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dare not cross the threshold of the ruined tenement.” The Semayne case embodies an abiding principle of personal liberty which transcends all other state functions of providing economic and strategic security. What is referred to as ‘home’ in 1603 is a ‘computer’ or a ‘mobile’ today as a full life of an individual resides in it.
The state is fed by the police on its insecurities which can easily ignite interest in ‘something is cooking’. This is also a means used by the police to remain relevant to political power. Social media provides ample opportunities to police to jump for the gun. Let’s take a much-quoted incident of 28 December 2014 when an improvised explosive device (IED) explosion occurred on Church Street in Bengaluru. Read the 3 tweets on Twitter:
1st tweet: Blast on Church Street in Bengaluru.
2nd tweet: Blast near church in Bengaluru.
3rd tweet: Blast in a church in Bengaluru.
This could have escalated into a serious law and order problem in a multi-racial modern city but was prevented by credible online presence of the Bengaluru City Police, which quickly dismissed this malicious information through its Twitter and Facebook social media teams. The next year, provoked by rumour of communal clashes in Assam, an exodus of more than 15,000 Northeastern Indians took place in the same city. The Bengaluru City Police banned bulk SMSes in time to prevent riots, but despite frantic appeals the exodus could not be controlled immediately.
In 2013, a WhatsApp video of two boys being beaten fanned the Muzaffarnagar riots. By the time it was determined the video was at least two years old, filmed perhaps in Afghanistan or Pakistan, it was too late—the worst case of violence in the recent history of Uttar Pradesh could not be prevented.
In 2015, a message appeared on the Facebook, “Bhai log Kolkata ke raza bazar me 63 madarse ke bachhe ko police ne giraftar kr liya h unka kahna h ke ye aatankwadi ka training lene ja rahe h..is Msg ko jaldi forward kre media dekhne se in kar kar Diya h media bol raha h ke hme uper se order h nhi dekhne ka plz forward all grp” (63 madarsa students have been detained by police as they are alleged to be on route for training in terrorism, this message should be quickly forwarded to all groups). In the video, a group of students can be seen walking in a queue with policemen guiding them. It finally turned out to be that these young boys were travelling without valid documents and so the police had sent them to a children’s home.
The threats to personal liberty due to the current online world of communication such as content posting, hacking and state surveillance are all genuinely grave issues since they not only limit free speech and accountability concerns of governance but equally disturb law and order maintenance. Most of us have experienced JNU’s politically motivated student-teacher tirade of 2016, which took a rabid turn when it started attributing unsubstantiated allegations on all social media posts against those who were their professional academic competitors. This has destroyed the careers of several brilliant and well-meaning academic researchers. But should this justify the use of a spyware to hack into personal accounts and homes of clueless people? This is one of the biggest, most scathing and devastatingly expensive (roughly above $7.5 million since 2016 as maintenance cost) assaults on personal liberty in India. The machinery of governance is too ill equipped, the home ministry seems naïve and oblivious about diffracted realities of the modern world, the training schools of government are archaic and devoid of energy to encounter new demands of governance. By applying military surveillance techniques upon civilians only demonstrates the bankruptcy of governance, its National Intelligence Grid (NATGRID) and Central Monitoring System (CMS), which exist to increase public safety and security by tackling crime and terrorism.
The government should present a white paper of the hacking allegations and reclaim public trust for effective governance, or the idea of digitising India may have to stand on stilts.
The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.