The government describes all its actions as a sine qua non and as time will progress the actions will become a sine qua non for democracy itself. It thus sounds ridiculous and there would be people predicting a potential for an Orwellian regime. A citizen is compulsively transparent to the government but the other way round is invisible. And then we come to the Right to Privacy (RtP) which can be the symbolism for shutting the door on power’s face. Budhaditya Bhattacharjee writes about Right to Privacy.
One can draw out an insurmountable number of instances from the world of fiction. These may include George Orwell’s 1984, Aldus Huxley’s Brave New World, Philip K. Dick’s Minority Report, Terry Gillian’s movie Brazil and others. The common element in all of these works of fiction is not just the weighty depths of science fiction and dystopia. They all talk about the violation of one simple but crucial human right – the Right to Privacy (RtP). We all are aware that discussions were furthering at the Supreme Court last year, however, we do not bother to look at the fact that the resolute structure of law had still been discussing – because discussions, in terms of RtP, should have happened years ago.
But why we must think that RtP is an essential and significant right? In that case, privacy must be deconstructed in philosophical expressions. For instance, philosopher Hannah Arendt referred to privacy with a completely different approach. In her philosophical works, Arendt talked about the substance of a prosperous and pulsating private realm.
According to Arendt, privacy is indispensable as it allows individuals to surface as exceptional persons in the world. She believed that the realm privacy is the realm of “exclusiveness.” It is that realm in which individuals “choose those with whom we wish to spend our lives, personal friends and those we love.”
Furthermore, Arendt noted that the private choices people make are conducted by nothing objective or knowable. “Privacy strikes, inexplicably and unerringly, at one person in his uniqueness, his unlikeness to all other people we know,” she stated. Most importantly, she wrote that privacy is notorious because the policies of uniqueness and exclusiveness are and will eternally be in conflict with the principles of society.
In other words, the Right to Privacy delivers the “sacredness of hidden” and also protects a person from the conformist prospect of the social and the political world.
A Right That Cannot Be Overlooked
Many would ask why suddenly the RtP is the latest talk of the town. It is quite interesting to observe that interest of the citizens only becomes a concern when any government is questioned regarding its actions. And now, without breaking the tradition, India has become too much active in talking about RtP, when the legality of Aadhar is being questioned.
It was recently noted that the Attorney-General blatantly formulated an assertion in front of the Supreme Court that Right to Privacy is not a fundamental right. Moreover, he stated that the people of India do not have a constitutionally recognised right to privacy. Concerns pertaining to this right came up right when the concept of Aadhar was doubted. In the policy of Aadhar, citizens of India will be giving away several types of information or secrets which the government will be stored for its own use. However, the question is whether parting away with sensitive personal information is a severe breach of privacy. The Centre puts forward the Kharak Singh case that stated that privacy was not a “guaranteed right” under the Constitution.
Surprisingly, the government has forgotten the 1978 Maneka Gandhi judgment. In 1977, Maneka Gandhi got a letter from the Regional Passport Office, Delhi, which had asked her to submit her within seven days from the day on which she had received such letter. The letter mentioned that the Government of India had decided to impound her passport under Section 10(3)(c)of the Passport Act 1967. The ground for such an impounding, as told to her, was “public interest.”
Without further delay, she sent a letter to the Regional Passport Officer, asking about the grounds on which her passport had been impounded. She also requested a copy of the ‘Statement of Reasons’ for making of such an order. However, the reply sent to her by the Ministry of External Affairs stated that the impounding of the passport is in the interest of the general public. It also said that there were orders to not issue her a copy of the Statement of Reasons. Gandhi ultimately filed a petition with regards to the matter.
Most importantly, in this case, it was understood that the Passport Act 1967 had given indomitable and unquestionable powers to passport authorities. But after an immense legal battle, a landmark judgment emerged. It stated the right to life and personal liberty had to be interpreted broadly with other fundamental rights (Article 21 of the Indian Constitution).
Another interesting instance took place when the current finance minister of India, Arun Jaitley, talked about Aadhar in the Rajya Sabha.
“The present bill (Aadhaar) pre-supposes and is based on a premise that it is too late in the day to contend that privacy is not a fundamental right. So I do accept that probably privacy is a fundamental right,” said the minister. “It is now accepted that privacy is a part of individual liberty. Let us assume that privacy is a part of liberty and no person shall be deprived of privacy without due process of law.”
A Press Freedom Perspective
I had a conversation with Benjamin Ismaïl, an independent free speech advocate and the former head of Asia-Pacific Desk at Reporters without Borders. During the conversation, Ismail stated that the question regarding the RtP comes into existence at a very early stage of journalistic activity. He noted that any media house, a journalist or a blogger will fail to work for public interest while under surveillance by the State or a private entity. Most importantly, he noted that information can be censored during an investigation and such “censorship and/or cover-up will undoubtedly be detrimental to public interest.”
“Above all, violation of journalists’ privacy endangers the confidentiality of sources. This is a crucial element as a government cannot say it recognises the right to protection of sources on the one hand, while on the other hand, it disables journalists’ privacy through a legislative bill,” said Ismail. “Without Right to Privacy, there is no confidentiality of source and without it, no independence, and therefore no freedom of the press.”
The independent free speech advocate also talked about the reasons a government would foster in order to legalise such censorship. There are three basic excuses – national interest, public interest and national security. Here it must be clarified that the actual meaning of the word ‘nation’ is people. To simplify, one can check the definition of the word on Wikipedia which states that a nation is “is a large group or collective of people with common characteristics attributed to them — including language, traditions, mores (customs), habitus (habits), and ethnicity.”
However, governments have manipulated the word ‘nation’ by changing its original meaning to ‘government’. And such excuses of ‘national interest’ act as a government’s daily cup of brew, whenever a journalist tries to publish sensitive information that questions a government and is of public interest.
“A government that works to prevent information, which is of public interest, from being published – is working against the interest of the public and is, therefore, a threat to the Nation,” Ismail stated.
Hereby, it can be duly stated that the right to privacy and press freedom are seriously and effectively intertwined.
A Human Rights Perspective
The Universal Declaration of Human Right, adopted by the United Nations in 1948, stated – “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
“In the exercise of these rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society,” the UDHR stated with respect to reasonable restrictions.
In 1948, India became a cosignatory of the Universal Declaration of Human Rights. Moreover, India is also a part of the Geneva Convention of 1945.
Kirity Roy, a renowned human rights activist, communicated with me. He stated that Right to Privacy is a ‘law of the land’. “According to Article 141 of our Constitution, ‘Right to Privacy’ it is law of the land. India is party to Geneva Convention 1945. It is the duty of every Indian Citizen to foster respect to International law, international treaties signed by Indian State / GOI (Indian Constitution Article 51 (C),” he stated. “Every Indian citizen has to pay respect to the treaties signed by Indian Government. By this way too, ‘Right to Privacy’ is such a right which is constitutionally guaranteed.”
The shocking part emerged when he stated that in the name of Security of State, to combat armed opposition groups and to hail ‘nationalism’ – surveillance is the command of the current state of affairs. “Illegality is the legal way of government officials. As human rights activist, I am also under surveillance of the state. I am proud to be an Indian more than corrupt politicians in Parliament and state legislative assembly or corrupt police/BSF/judicial officers,” he said.
In The End
Rampaging information came out in the open when Edward Snowden leaked documents full of secrets, which stated that the United States of America had developed an operation known as PRISM. By using that the American government was breaching the privacy of all its citizens – while wire-tapping phones, checking personal emails, creating think tanks to monitor social media activities etc.
On similar lines, WikiLeaks founder and editor, Julian Assange, leaked multiple cables and flashy headlines appeared on the television. The headlines vomited about the way the USA keeps tabs on various nations and how the country’s intelligence agencies take deliberate steps to cover up its tracks.
In India, policies like the Official Secrets Act stills behave like the Seditions Act under the British Raj. The significant issue is how such an act is in defiance with the Right to Information. When the government uses the word ‘confidential’ for information one is seeking under the RTI Act, the government is actually hindering public interest and protecting itself from embarrassment.
The dictum must be – if the government can keep secrets, why can’t we.