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No Liberties With Our Liberty

Unauthorised phone-tapping is a violation of our fundamental right to privacy. Personalities from across the spectrum express concern.

No Liberties With Our Liberty

“The outdated legislation must be scrapped and replaced by a new one that forbids invasion of an 
ordinary citizen’s privacy.” L.K. Advani, Senior leader, BJP
  “Tapping politicians’ phones is a cowardly act.... Can the government explain how the leaders spied on pose a threat to national security?” D. Raja, National secretary, CPI   “The episode reflects the power of technology to intrude silently, to promote voyeurism and to make a suspect of every person....” Usha Ramanathan, Law researcher, CSDS

“Surveillance of areas dominated by Muslims is reprehensible. They are always under suspicion; this confirms that fear.” Asaduddin Owaisi,  
President, MIM
  “An apex court order spells out when, as a last resort, tapping could be done: during public emergency or when safety is at risk.” Ravi Shankar Prasad, Spokesperson, BJP   “Sanction for surveillance must come from a judge. The Right to Privacy is a cherished right we have given up on.” Colin Gonsalves, Advocate, human rights activist

What sort of government would snoop on its own citizens and their elected representatives with scant respect for their privacy? The answer, naturally, has to be this: a repressive government, one that does  not enjoy the trust of its own people. Sixty-three years of democracy should have actually strengthened the hereditary compact between a government and its people. But as the report in Outlook on phone-tapping suggested last week, the state thought little of using its intelligence agency, the National Technical Research Organisation (NTRO), to tap the phones of senior leaders from across the political spectrum and spy on Muslim-dominated areas in different cities. Its denials in Parliament—on the lines that it never authorised any tapping in the first place—has not cut much ice with anyone.

The controversy has united politicians, human rights activists and lawyers into demanding an oversight mechanism. Some have suggested scrapping the old law and passing a new legislation to cover new technology which allows agencies to illegally tap cellphones bypassing the service provider and hence requiring no authorisation. Says senior BJP leader L.K. Advani: “What is really required is to set up a parliamentary committee to examine all aspects of the problem, scrap the outdated Indian Telegraph Act of 1885 and replace it by a new legislation which forbids invasion of an ordinary citizen’s privacy, but which formally recognises the right of the state to use the latest IT devices of interception to deal only with crime, subversion and espionage. The law must provide statutory safeguards which make it impossible for the government to abuse its powers against political activists and journalists.”

It’s a view echoed by BJP spokesperson Ravi Shankar Prasad when he says there is a pressing need for legislation, but that “the DNA of the Congress party does not inspire confidence”. Prasad says, “We have a clear Supreme Court verdict which has spelt out in detail when tapping should or can be resorted to—when public emergency or public safety is at risk. The court clarified that these are not two inconsequential words and that tapping is to be resorted to only as a last resort.”

The court order he is referring to is the 1996 verdict in the PUCL vs the Union of India case. The apex court highlighted one simple fact; it vigorously defended an individual’s right to privacy while acknowledging that every government does resort to some degree of intelligence-gathering aided by the growth of highly sophisticated communication technology. The court had also laid down the conditions for such interceptions, on who should authorise such acts and clearly spelt out that they should be resorted to when the security and sovereignty of the state or public order was imperilled.

Also in focus is the right to privacy—a fundamental right of every citizen that follows from the Right to Liberty under Article 21 of the Constitution. Throughout last week, as elected representatives interrupted parliamentary proceedings to raise the issue of the state prying into people’s lives, their attempts were stonewalled by a government which vehemently denied the entire episode.

Human rights activist and advocate Colin Gonsalves proposes a judicial oversight, with a retired judge authorising all necessary cases of tapping. “The permission must come from a judge. The Right to Privacy is such a cherished right that we have given up on. We have become a police state. As far as home minister P. Chidambaram’s statement that the government didn’t authorise phone-tapping goes, we all know it is being done quite rampantly,” he says.

But he is of the view that the emphasis on legislation is a red herring. “As human rights activists, we know that our phones and e-mails are being tapped. What is required is a blanket ban on phone-tapping. We need to understand the extent of the crime that is being committed. We need to understand that except in a very well-defined, narrow spectrum related to national security there is really no room for tapping in a democracy,” says Gonsalves.

Criticising the practice of keeping the minority community under watch, Asaduddin Owaisi of the MIM says: “Everyone seems to be missing the point in the Outlook story that surveillance machines are deployed in Muslim-dominated areas. This is reprehensible, communal. The community is always under suspicion; now your story reiterates and confirms that fear. What if someone is picked up because of illegal interceptions and is later on found to be innocent? We need parliamentary oversight and strict laws governing our intelligence community as well as the use of such passive interception machines.”

D. Raja of the CPI also castigates the surveillance of politicians through phone-tapping. “Why is the government tapping phones of politicians? It is an act of cowardice, otherwise how can you explain it? Even when P. Chidambaram explains how an oversight committee actually authorises tapping at times when the national security is threatened, can the government explain how the politicians who were tapped posed a threat to national security? The government should realise that this is an assault on civil rights. Ours is a transparent democracy and such tapping goes against the values of democracy.”

Law researcher at the Centre for the Study of Developing Societies, Usha Ramanathan, says the “power of technology to intrude without anyone even knowing, to promote voyeurism, to make a suspect of every person, to create unconstitutional hierarchies of power and control are in plain view in the phone-tapping episode. What does it take to get a government to understand that there is no right to track, trail, keep under surveillance? It is plain that if we do not safeguard our liberties, they will slip away.”

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