Right to Privacy & Legitimate State Interest

• 06 Feb 2021

Why in News

Recently, the Central government has stated that though the right to privacy is held to be a sacred fundamental right, the veil of privacy can be lifted for legitimate State interest.

• The government was responding to a petition seeking permanent halting of the Centre’s surveillance projects- Centralized Monitoring System (CMS), Network Traffic Analysis (NETRA) and National Intelligence Grid (NATGRID).

Centre’s Surveillance Projects

• Centralized Monitoring System:
  
  • The government has set up a Centralised Monitoring System (CMS) for lawful interception and monitoring of mobile phones, landlines and internet traffic through mobile networks.
• Network Traffic Analysis:
  
  • NETRA (or Network Traffic Analysis) is one such effort being taken by the Indian Government to filter suspicious keywords from messages in the network
• National Intelligence Grid:
  
  • First conceptualised in 2009, NATGRID (National intelligence Grid) seeks to become the one-stop destination for security and intelligence agencies to access databases related to immigration entry and exit, banking and telephone details of a suspect on a “secured platform”.

Key Points

• Petitioner's Arguments:
  
  • The government’s surveillance projects enable government authorities to intercept, store, analyse and retain telephone and internet communications data in bulk in violation of the fundamental right to privacy.
  • These systems allow the government a 360 degree surveillance of all citizens, including judges.
  • It sought creation of a permanent and independent oversight authority - judicial or parliamentary - for authorising and reviewing interception and monitoring orders or warrants issued under the Telegraph Act, 1885 and the IT Act, 2000.
• Government’s Arguments:
  
  • Lawful interception, monitoring or decryption of any messages or information stored in any computer resources is done by authorised agencies after due approval in each case by the competent authority.
    
    • There is no blanket permission to any agency for interception or monitoring or decryption; and permission from the competent authority (Union Home Secretary) is required.
  • It contended there is sufficient mechanism of oversight in place in the form of a Review Committee, headed by the Cabinet Secretary at the centre and chief secretary at the state level, which examines if the approval has been given in accordance with the law.
    
    • When the Review Committee is of the opinion that the directions are not in accordance with the provisions, it may set aside the directions and order for destruction of the copies of the intercepted message or class of messages.
  • The grave threats to the country from terrorism, radicalization, cross-border terrorism, cybercrime, organized crime, drug cartels cannot be understated or ignored and a strong and robust mechanism for timely and speedy collection of actionable intelligence including digital intelligence, is imperative to counter threats to the national security.

Right to Privacy

• About:
  
  • Generally understood that privacy is synonymous with the right to be let alone.
  • The Supreme Court described privacy and its importance in the landmark decision of K.S. Puttaswamy v. Union of India in 2017 that - Right to Privacy is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes.
  • The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
• Restrictions (as stated in the Judgement):
  
  • The right may be restricted only by state action that passes each of the three tests:
    
    • First, such state action must have a legislative mandate;
    • Second, it must be pursuing a legitimate state purpose; and
    • Third, it must be proportionate i.e., such state action- both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.

Government Steps to Protect Privacy

• Draft Personal Data Protection Bill 2019:
  
  • The Bill regulates the processing of personal data of individuals (data principals) by government and private entities (data fiduciaries) incorporated in India and abroad. Processing is allowed if the individual gives consent, or in a medical emergency, or by the State for providing benefits.
• B N Srikrishna Committee:
  
  • Government appointed a committee of experts on data protection under the chairmanship of Justice B N Srikrishna that submitted its report in July 2018.
• Information Technology Act, 2000:
  
  • The IT Act provides for safeguard against certain breaches in relation to data from computer systems. It contains provisions to prevent the unauthorized use of computers, computer systems and data stored therein.

Source:IE