Surveillance and Constitutional Rights in India
By Gautam Bhatia
(“You Will Be Under Surveillance 24X7, if the Indian Government succeeds with the Central Monitoring System. Should Fascism Replace the Constitution is an issue this article by Gautam Bhatia raises”).
Surveillance and Constitutional Rights in India
Gautam Bhatia1
In May 2013, the Hindu revealed details about India’s Central Monitoring System (CMS), a mass surveillance scheme run by the government. Through the CMS, the government will have access to both the content and the metadata (that is, details of call numbers, duration, time etc.) that goes through India’s telecom networks. This would include the content of phone-calls, text messages, emails, tracking the location of persons, and so on. As this essay points out, the ramifications are immense:
“With the C.M.S., the government will get centralized access to all communications metadata and content traversing through all telecom networks in India. This means that the government can listen to all your calls, track a mobile phone and its user’s location, read all your text messages, personal e-mails and chat conversations. It can also see all your Google searches, Web site visits, usernames and passwords if your communications aren’t encrypted.”
And recently, newspapers have also been carrying reports about Netra – another surveillance system that is designed to track the use – over mobile phones – of words such as “attack”, “bomb”, “kill” etc. (which, as might be noticed, have perfectly legitimate uses), and track the caller and the location of the phone as well.
Even until ten years ago, telephones were only one – limited – source of communication. Now, however, mobile phones and email are ubiquitous, almost like extensions of our individual selves. The amount of personal information that is now communicated and stored in mobile phone records and in email accounts on the internet is truly staggering. To draw an analogy: the kind of surveillance CMS is capable of doing would be equivalent, twenty years ago, to a police officer visiting your house every evening, doing a top-to-bottom search of the premises, going through all your personal papers, diaries and other books, and compelling you to inform him about almost conversation you had during the day. This makes understanding the precise legal and constitutional problems with the CMS extremely important.
While I will go on to argue that the CMS is unconstitutional, there is an even more basic and preliminary concern: there is no law that authorizes the CMS. The Indian Telegraph Act authorizes specific, targeted surveillance of telephone networks, but does not permit bulk surveillance – that is, surveillance on a nation-wide scale, surveillance of people that are not suspected of any wrongdoing (the CMS and other such monitoring systems achieve this form of bulk surveillance by gaining access to the telephone records stored by service providers such as Airtel etc.). The absence of law is particularly damaging, because, as is obvious, a bulk surveillance program raises serious issues relating to the rights of privacy, free association and free expression. Decisions about whether, when and how to curtail citizens’ rights in light of societal interests must be made by the most democratic branch of our government, the legislature, through a public process of deliberation, debate, dissent – and ultimately, a vote. The requirements of accountable, republican government demand that decisions that have a profound impact on citizens’ basic rights be open to public scrutiny at all times. This is illustrated by the fact that under Articles 19 and 21, fundamental freedoms and the right to life and personal liberty can be curtailed only by law, or procedure established by law. This was recognized by the Supreme Court in the first Indian judgment that engaged with privacy in a meaningful way, Kharak Singh v State of UP2. In that case, the Court held that if there was no legislative backing for an act that infringed fundamental rights, it was automatically void. The protective umbrellas of Articles 19(2) to (6) would not even be applicable.
A second procedural problem with the CMS is the lack of oversight. Even in the United States, which has an elaborate internal spying system, surveillance requests must be approved by a Court (known as the FISA Court). In PUCL v Union of India3, our most famous case of phone tapping, the Court held that at the very least, there would have to be effective administrative oversight of surveillance programs. Bear in mind, though, that PUCL was only about individual, targeted surveillance. Arguably, something as extensive and far-reaching as nation-wide, bulk surveillance would certainly need judicial oversight in order to effectively protect citizens’ rights. To clarify: judicial oversight here means neither oversight by technical bodies of experts, or by commissions manned by former members of the judiciary; since the issue involves important constitutional rights, the oversight must be conducted by active members of the judiciary, as is the case in the United States.
There are, however, deeper problems with bulk surveillance, and these directly implicate our constitutional rights. Our Constitution guarantees to us, in Article 19(1)(c), the freedom of association. Under Article 19(1)(a), it guarantees the freedom of speech and expression. If the content of our communications is regularly in governmental hands, this is likely to have a severely detrimental effect upon our freedom to associate with individuals and organizations of our choice, and to express our views freely. This is known as the “chilling effect”, and has been recognized in jurisdictions as diverse as the United States, Canada and Sri Lanka. The basic idea is that people are less likely to express unpopular views, and associate with unpopular groups, or groups against which the government is known to be hostile, if they know that their movements and behaviour are being tracked. In a very famous American case, NAACP v Alabama4, the Alabama government demanded the membership lists of the NAACP, an organization litigating the rights of African-Americans. The United States Supreme Court ruled that this demand was unconstitutional, because the forced disclosure of membership lists of an organization that the government was publicly hostile towards would have a definite negative effect upon its right to associate and express its views freely. In India, for example, would one really be comfortable with associating with a group that – entirely legally – argued for Kashmiri self-determination in the hostile climate that exists today, unless one could be sure that the government was not listening in?
The chilling effect is exacerbated by the presence of draconian laws on the register, that have been regularly abused (specially against stigmatized and stereotyped communities), such as POTA, TADA – and most of all – the UAPA. The UAPA, for instance, already criminalises merely voicing an opinion that might be construed to be against what the State considers to be the “territorial integrity” of India; with surveillance on the scale of CMS and Netra, the reach of the UAPA now potentially extends to the most private and personal of conversations, quite akin to the State entering the bedroom to regulate the modalities of sexual intercourse between consenting adults!
The freedom of association, like other Article 19 freedoms, is not absolute. It may be restricted in the interests of public order. The standard arguments that have been used for bulk surveillance have been that it’s important for the government because it helps track terrorists – and it will almost certainly be argued, therefore, that the public order exception permits it. It is important to note, however, that the Supreme Court – rightly – has always required a rigorous standard to satisfy the public order exception. It has held that the link between the prohibited expression and public order must be like that of a “spark in a powder keg”5 – for instance, free speech could be restricted if one was inciting an excited mob to mass violence, but not – as in the Supreme Court case of Lohia6 – if a person was merely telling other people to break the law. Now, the actual function that bulk surveillance plays has been hotly disputed – the US, for instance, has still to convincingly show that surveillance was crucial in foiling terrorist plots. Whatever the evidence, it must be clear and convincing to a Court of law, using judicial standards of evaluating evidence, to justify a violation of free expression or the freedom to associate.
This leads us to the last constitutional issue: Article 21 guarantees to all citizens the right to life and personal liberty, and in a string of cases starting with Gobind v MP7, the Court has included the right to privacy within Article 21’s ambit. It is obvious that bulk surveillance infringes privacy: the question then is, is it justified? The Supreme Court has required a compelling State interest in order to justify a violation of privacy. Now, admittedly, stopping terrorism is a compelling State interest. But we also must examine another strand: the compelling State interest is an American doctrine, and it always goes along with a companion doctrine: that of narrow tailoring. This means that in cases of fundamental rights infringements, not only must the government demonstrate compelling State interest, but they must also show that the particular impugned program is the only way in which that compelling interest may be served – and that no other program that was less volative of citizens’ rights would be sufficient to serve the envisioned goal. The government, therefore, would need to show that bulk surveillance is the only way of effectively stopping terrorists, and that a more targeted approach would not work. This would be difficult. In prior Supreme Court cases, surveillance has been upheld precisely because it has been targeted and individual-specific – for instance, surveillance of repeat offenders to prevent them from committing further crimes, as upheld in Gobind. It is difficult to argue that the government needs to listen in to all our conversations, all the time, wherever we might be, whoever we might be speaking to, and whatever we might say, in order to maintain security.
Therefore, to sum up: the absence of legislative backing, the lack of meaningful oversight, and a potentially unjustified breach of our fundamental rights to free speech, free association and privacy are some of the most serious flaws with the government’s CMS scheme, and with bulk surveillance in general.
References:
1 Law graduate from National Law School University f India, Bangalore and currently studying in Yale University.
2 1964 SCR (1) 332.
3 AIR 1997 SC 568.
4 357 U.S. 449 (1958)
5 S. Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574.
6 Superintendent, Central Prisons v. Ram Manohar Lohia, 1960 SCR (2) 821.
7 1975 SCR (3) 946.