Year of ecstasy and agony for libertarians

K Raveendran

2018 will go down in history as a year in which Indians experienced bouts of ecstasy as well as agony when it came to intrusion of the state into their private lives. We hardly finished celebrating the Supreme Court verdict in Aadhaar case, which upheld privacy as a fundamental right, though with certain riders, drawing strength from the historical verdict of a 9-member bench pronounced a year earlier, unanimously declaring that the citizen’s right to privacy was guaranteed by the Constitution. But as the year wound down to a close, dark clouds hang over the horizon, threatening to undo whatever we had achieved in the past couple of years by way of judicial backing for privacy of the individual.

Years of efforts by privacy soldiers, judicial work and debate have been brought to naught in one stroke by the Modi government through its act of bringing a draconian rule through the back door. The snooping order authorised 10 agencies, including the Intelligence Bureau, the CBI, the National Investigation Agency, RAW and the Delhi police, all of which have been abused by the ruling parties as political tools to hunt down opponents, to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource in the country.

Then comes another ominous report that the government is considering changes in the IT Act to force internet, chat and social media companies to trace and identify people using messaging platforms. It is believed that the move, which was discussed during a meeting with internet companies and the IT ministry, will impact platforms like WhatsApp that promise encryption and enhanced privacy to users. These companies have been resisting attempts by the government to harvest data, but changes to the IT Act would make it difficult to them to refuse such requests in future.

The new developments bring the worst fears that Justice Chandrachud expressed in his dissenting note in the Aadhaar constitutionality case. Chandrachud had concluded that there was real danger of India becoming a surveillance state even with the limited privacy breaches for Aadhaar. He maintained that the government cannot justify the intrusion on people’s privacy just by insisting that it will be used to provide welfare services. “Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme which promotes socioeconomic rights of citizens is violative of human dignity and impermissible under our constitutional scheme,” the lone dissenting note asserted.

While Justice Chandrachud was discussing the threat to privacy in the context of Aadhaar, the new regulations take this intrusion to much deeper levels. The feared Orwellian state seems to be already upon us. The government wants to put in place such an oppressive regime in the defence of national security.

The government’s oppressive surveillance regime promises a long struggle ahead for those who value personal liberty and freedoms. But that is no reason to get disconsolate as Indians have proved time and again that, when challenged, they are capable of taking their affairs into their own hands. Lord Krishna proclaims in Bhagvad Gita how He incarnates himself whenever adharma crosses the limit. The Indian voters have made Bhagvad Gita a living doctrine: Whenever they find government tyranny crossing all acceptable levels, they have been making effective interventions. They did it in 2014 and the recent assembly election results provide a trailer of what is coming up in 2019. Gone are the days when the Indian voter can be led up the garden path with empty slogans and gimmicks. Today they are a matured lot, capable of seeing through games played by scheming politicians.

So it can be safely assumed that the repressive mechanism being put in place by the Modi government has only limited life. Two public interest litigations, one by ML Sharma and another by Ami Sahni, are already before the Supreme Court, which had once warned the government against any plan to snoop on WhatsApp, email accounts or social media posts on Facebook, Twitter or Instagram while dealing with a petition challenging the move to set up a social media monitoring hub, which the government was forced to drop. The latest PILs accuse the government of treating every citizen as a criminal, which is the essence of the home ministry order.

(The author is a political commentator)