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The Walls Have Ears by Saikat Datta

The proposed Privacy Bill seems skewed towards the state rather than the citizen

Sometimes the best of intentions can camouflage the worst of motives. On the face of it, the government’s bid to bring in a privacy bill is a welcome move, a long-overdue measure. But after an initial approach paper prepared by lawyers and bureaucrats in November last year, the government went into a secretive huddle. Now a leaked April 19, 2011, version of the bill raises several disturbing questions.

While recognising the need for privacy, the government has also slipped in several clauses that could severely restrict the freedom of the press if enacted in its current form. Worse, it could actually make journalists liable for prosecution as well as imprisonment up to five years. And if that was not bad enough, it does little or nothing to prevent the government from invading a citizen’s privacy. In fact, it will legitimise all forms of intrusion by the state and collection of a wide variety of data from individuals.

TV news channels could be the most affected by this. Sting operations could become a very risky thing in the future, with section four of the proposed bill saying that any form of filming/recording can be deemed as surveillance and anyone doing so without proper authorisation would be liable for prosecution. So if someone was to secretly catch on camera MPs accepting cash for posing questions in Parliament, or record a bureaucrat demanding bribes, chances are he/she will be doing time in jail.

While the proposed draft draws a distinction between data and personal information, it still leaves little room for journalists. For instance, if a reporter were to use “personal information” of an individual for an article without his/her written consent, it will amount to a civil offence and immediately attract a penalty of up to Rs. 1 lakh. If the journalists were to repeat the “offence” by publishing another story using the same material, the penalty goes up to Rs. 5 lakh. So, is the UPA government, under the scanner for a plethora of scams, trying to muzzle the media? It certainly seems so.

Now when it comes to the government’s right to invade a citizen’s privacy, the proposed legislation offers little immunity. It will uphold all existing laws of phone-tapping, interception of communications, collection of statistics and personal data with impunity. “The proposed bill doesn’t change any system or structure of surveillance that are in place today,” says Usha Ramanathan, a law researcher who has worked extensively on privacy issues. “Look at the Collection of Statistics Act passed by Parliament last year. You can be penalised for not sharing the information that the government seeks from you. This is very disturbing.”

Ramanathan’s discomfiture has its reasons. “In the past three years, the government has become far more intrusive than it ever was. All this is asserting the sovereignty of the state over the citizen when the Constitution says that the citizen is supreme. This bill, in its current form, also brings in an element of pre-censorship that violates our fundamental right to speech as well as several judgements of the Supreme Court that ruled against pre-censorship.”

On the other hand, former cabinet secretary K.M. Chandrashekhar, a prime mover behind the bill during his tenure, feels that the security needs of the state warrant “lawful” intrusion by it. “The idea was to protect privacy but not short-circuit the current surveillance systems in place for combating terrorism.”

As far as protecting privacy is concerned, of course all is not bad with the proposed bill. Prashant Iyengar, a researcher with the Centre for Internet and Society (CIS), a Bangalore-based NGO that has played a leading role in shaping the public discourse on this issue, is hopeful. “For the first time, this bill creates a strong liability for the government. This means that the government can be held liable and penalised for the violation of privacy. It also establishes a routine civil liability against the government for all its lapses in protecting the privacy of citizens... which is very good.” But Prashant also feels that the bill has a long way to go before it resolves some inherent contradictions. “The proposed Act must recognise the concept of public interest while it protects privacy. That is an element missing from the current discourse.”

Satyananda Mishra, the chief information commissioner and a former secretary, DoPT, has a nuanced view of the proposed bill. He feels public interest must outweigh privacy in every case. “But while we accept the primacy of public interest, we must be very, very careful about what is public interest,” he says.

Mishra, in many ways the country’s biggest trustee of transparency in public life today, suggests a few key modifications in the conditions in the proposed legislature. “We need to understand that after the enactment of the RTI Act, it has become incumbent upon us to have some form of inherent disclosure in all our public dealings. This will also safeguard our privacy from the government.”

The relationship between citizen and government, says Mishra, is guided by a social contract. “People elect governments and trust them with their lives and liberty in the promise that the government will exercise its powers for their welfare. But there could be instances where the government breaks that promise. It could legitimately tap someone’s phone through legal means, but with malicious intent.”

To prevent this, Mishra suggests a modification to the proposed Privacy Act. “Let there be disclosure of all such events, after a reasonable period of time, of any effort by the government to invade the privacy of citizens. For instance, if it needs to tap the phones of a person, then it must be disclosed after a period of time. After all, phones can be tapped legally only to protect the interests of the state. So it should either lead to a criminal prosecution or a disclosure after a reasonable amount of time has elapsed. That is the only way we will be able to curb the intrusive powers of the state and protect the privacy of citizens.” Prashant of CIS agrees with Mishra’s suggestion. “In the United States, all wire-tapping laws have a clause for disclosure. This way, a citizen will know if his privacy has been violated lawfully or not.”

While the government will take its time to introduce the bill in Parliament, it needs to be more transparent in its deliberations. Right now two ministries are working simultaneously on the same bill. While the ministry of law and justice under Veerappa Moily is busy shaping its draft, the ministry of personnel, training and public grievances under the prime minister is busy formulating its own version. While they work on it, what both ministries must recognise is that nothing is private about public policy.