ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Democracy under Surveillance

The direct threat of surveillance to civil and human rights is a global concern. 

Our democracy is under surveillance. The freedom of speech and expression being exercised by individuals within constitutional parameters cannot be considered as a threat to national security. Recent reports indicate that a number of Indians were kept under surveillance through a spyware software called Pegasus, which operates by primarily compromising data through WhatsApp. Once installed, the spyware can compromise everything on a mobile phone: calls, messages, passwords, and contact lists. It can even turn on the phone’s camera and microphones to capture activity near the phone. 

Pegasus is owned by the Israeli NSO Group Technologies; their services were used by the Saudi Arabian government to spy on people, to threaten and track them, including Jamal Khashoggi, a dissident and Washington Post columnist who was assassinated at the Saudi Arabian consulate in Istanbul in 2018. The Government of India’s response in Parliament on its use of Pegasus spyware was evasive, and its defence rested entirely on national security. Under current laws, the government indeed has the power to intercept specific communications during rare emergencies involving harm to public safety or harm to national security. But, national security cannot be used as a blanket exemption for everything, as Supreme Court has observed in K S Puttaswamy v Union of India in 2018. 

Out of the 121 individuals who were subjected to this extremely intrusive form of surveillance, sizeable numbers are activists, academics, and journalists. The knowledge and opinions of these dissenting individuals has been made a national security concern, but their questions on accountability and human rights violations of the state could be threatening to the government as well as the bureaucrats. It is imperative that we question the government’s motives and such excessive measures being taken to place opinion-makers under surveillance. 

After the intelligence failures of the 26/11 Mumbai attacks, India has been attempting to build extensive databases. The government has also been increasingly spending vast amounts of money to build surveillance databases and hubs to monitor large populations of people. Projects like the National Intelligence Grid or NATGRID, Central Monitoring System (CMS) and the National Automated Facial Recognition System of Crime and Criminal Tracking Network and Systems (CCTNS) are helping build a police state with no legal safeguards in place to stop misuse or any recourse mechanisms to challenge such surveillance. The incremental building of these systems shows that the state is slowly acquiring the power to surveil anyone at any given point of time. As these databases have become a reality, we must recognise that we are a decade too late on regulating surveillance in India. This practice of acquiring information without the sanction of law and by using an executive order is another serious concern. For example, the executive pushed the Aadhaar project without the sanction of law until it was made mandatory, without an adequate legal framework or a data protection framework in place. The project is now riddled with glaring security issues and no recourse for those affected. 

The state is obliged to protect the fundamental rights of citizens, and our right to privacy is one of them. Allowing firms like the NSO Group Technologies to impinge upon that right is a grave transgression. The right to privacy cannot be taken away from individuals by security agencies without due process and in such a careless manner, and it cannot be violated unless exceptional circumstances demand it. A recent Bombay High Court judgment showed the way forward as it questioned the usage of evidence obtained using illegal surveillance by the Central Bureau of
Investigation (cbi) in a corruption case. The court not only disallowed the evidence, but demanded that all the information be deleted. The court did not find the CBI’s use of surveillance in this corruption case an emergency where public safety was threatened. 

Surveillance has also been used for political gains. A set of emails leaked by Hacking Team (an Italian firm involved in conducting surveillance) in 2015 showed that the Andhra Pradesh police was interested in procuring phone intrusion tools. This interest was made against the backdrop of the chief minister of Andhra Pradesh complaining to Union Home Minister Rajnath Singh about his phone being tapped by the then chief minister of Telangana, his political rival. In another instance, members of the Chhattisgarh state police have reportedly met with representatives from the NSO Group Technologies. While the government demanded more information from WhatsApp on the breach, it has failed to ask its own agencies as to what they were doing.

With no oversight and exemptions under every law, including the Right to Information Act, the national security agencies have become a liability to our democracy, as their purpose seems to have become about protecting those in power instead of protecting the vulnerable. There is an urgent need for surveillance reforms in India, and the forthcoming discussion in Parliament on the Personal Data Protection Bill, 2019 must be carefully examined and reported on. Peoples’ representatives must demand transparency and examine the current surveillance practices and hold those involved in carrying out unconstitutional practices accountable. The parliamentary committee on information technology should expedite its investigation into the Pegasus issue and deliver a comprehensive, forward-looking report at the earliest. It is moments like these that test our democratic fabric, and Indian institutions need to step up for fundamental rights.

Updated On : 26th Nov, 2019

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