Mr Prakash Singh, Former DGP

Mr. Prakash Singh, Former DGP (UP, Assam and BSF) and Chairman, Indian Police Foundation

We are talking today on a very sensitive subject, which concerns our privacy, our fundamental rights. But let us be very clear about certain things.

Surveillance has always been an essential or even an integral part of a state craft from the very beginning of history. Every king, every ruling party has employed the techniques of surveillance.

Historically, Chanakya’s Arthashastra contains very detailed instructions on surveillance. It talks of surveillance not only of people who are enemies of the state, it talks even of surveillance over officials of the government. I will just read out just two-three lines about what he says about the high officials. The king shall select from among the roving spies those who are diligent, can disguise themselves credibly conforming to different regions and know various languages and professions to spy on the activities of high officials within the country. They shall serve the king with devotion and to the best of their ability. So, every segment is to be kept under surveillance according to Kautilya. He talks of spies in the guise of ascetics, spies in the guise of householders, spies from amongst merchants, spies from amongst thieves. He also talks of those who are visiting drinking houses and spending more than their means. It’s a very comprehensive system of surveillance chalked out by Kautilya as far back as the Mauryan times.

As I said, surveillance is an integral part of a government. No ruling party or government or King can rule without surveillance. In India, once established, Britishers also felt the need for surveillance. In 1885, they formulated the Telegraph Act. Interestingly, it is somehow invoked even today and is used by the government. Apart from the Telegraph act, we have the Information Technology Act of 2000. These are the two main laws which govern and regulate surveillance in India.

On Challenges around Surveillance

The famous instances when surveillance went berserk. One of the two was the Neera Radia case. The 24 | January-March, 2023 COMMON CAUSE | Vol. XLII No. 1 conversations which that lady had with industrialists, journalists, businessmen and politicians were leaked out. It caused huge embarrassment to a lot of people. The other one was the biggest case that Mr Mudgal referred to. The data from 300 people’s accounts was stolen without their consent in India.

Surveillance does create problems. These problems have become very aggravated in the present context for the simple reason that technology is galloping. It’s not advancing, it’s galloping. Technology has placed intrusive and formidable tools in the hands of the governments with which anybody can be put under surveillance, without knowing about it. Today’s challenge is not only your privacy. The democratic institutions can be threatened and subverted with such instruments. So, it’s a very powerful instrument and therefore a very powerful threat also.

On Lack of Accountability and Oversight

In the absence of any law, the Supreme Court has been intervening from time to time to ensure that surveillance is kept within limits. The first important case on this issue was the 1996 PUCL case. The Supreme Court laid down certain procedural safeguards concerning surveillance. The other important case you would hear from the learned judge present here was the Puttaswamy case. Here, it was conceded that the right to privacy is a fundamental right guaranteed under the Constitution. So, the Supreme Court said that any order for surveillance has to be reasonable and bonafide.

In India, there are currently 10 agencies which have been authorised to intercept and monitor your communication. The Intelligence Bureau, the CBI, the Enforcement Directorate, the Narcotic Control Bureau, and some others are among the ten. These are the agencies which have the authority to put you under surveillance. But the sanction must come from the Secretary of the Home Department, Government of India. At present, about one lakh monitoring or surveillance orders are sanctioned every year. It works out to about 250 per day. If 250 cases are sanctioned per day for monitoring and surveillance, can there be judicious application of mind? It’s not possible. The concerned officer would be just signing in a routine manner. They have no time to see who is going to be put under surveillance and whether they deserve to be placed under surveillance.

Who is going to be accountable if a wrong order is passed? There is no system of accountability. The officer concerned gets away with it. There’s no liability provision. If somebody files petitions and it is found that the surveillance was not correct, at the most the surveillance order would be quashed and the monitored and intercepted communication might be destroyed. That’s about all. Now, accountability is a huge problem. An officer who sanctions monitoring and interception of communication has to take the responsibility that it was required under the circumstances and that due application of mind has occurred before exercising their powers.

Since this is not happening today, there is a huge accountability gap. As a former law enforcement official, I can say that in a lot of cases, surveillance is ordered for extraneous reasons. Not because you are indulging in international activities, not because you have links with some foreign agency, but because government probably wants to fix you. So, they put you under surveillance.

This amounts to abuse of certain powers. These cases are objectionable. But this is not common only in India, rather it is common across the world. Everybody is not able to exercise a certain power given to them judiciously and within the limits prescribed by the law. As I have already said, there’s no accountability and the existing procedural safeguards are inadequate. What is needed is a comprehensive legislation covering every aspect of surveillance. For instance, under what circumstances would surveillance be ordered? What will be the mechanism? Who will be the sanctioning authority and for what COMMON CAUSE | Vol. XLII No. 1 January-March, 2023 | 25 duration? It’s not that if you are put under surveillance it can go on year after year and people forget. It’s like a billboard which somebody puts up and then forgets even after the function is over. The billboard is still there. There are serious problems in surveillance today and these need to be taken care of.

On the Implications of Surveillance in India

I just want to make pretty brief comments about some of the findings. I find it very encouraging that there’s a high level of public support for surveillance. There is support for CCTV; support for drones, not 100 percent, but there is sizable support for drones, facial recognition systems and biometrics. But, I would say not many people who are giving their consent to or conveying their approval for these tools of surveillance are fully aware of the possibilities of misuse and abuse. They have given their consent in a general way. Because they find that there are a lot of lawless elements around here. There are a lot of communal elements here. There are subversive and separatist elements are there.

Indian society is very complex. Whatever comparative studies, I have done, I find it more complex and more problematic than societies in any other part of the world. As I have said, more than once, you think of any problem in any part of the world and I will show you a reflection of that in India. So, we such a plethora of problems. It’s unimaginable for the common man. You travel from one part of the country. You have a separatist problem in Kashmir. In Punjab, you’re seeing the Khalistan problem. You come to central India, you have Maoist problem. You go to Northeast, you have insurgencies, multiple insurgencies by Manipuri and Naga groups. It is in this context that people say that government needs surveillance. Government needs monitoring and interception in a general way. But as I said, the sensitivities of the exercise, the criticalities of how it could be misused or reviewed, that probably not many people are aware of.

One thing that is very encouraging is that there’s a huge degree of support for the surveillance of MPs and MLAs. It is also mentioned in the report. I found it very interesting and I think it’s absolutely called for. Especially when you have almost 43 percent people of questionable backgrounds in the parliament, as per the Association of Democratic Reforms. So, if people have supported their surveillance, I’m not surprised. It’s a good preference they have indicated.

On Surveillance by Social Media Giants

Another area which is also a huge cause for concern but has not been highlighted to that extent, is the surveillance by social media giants. They have all the information about the Indian educated class today. I was shocked when I get a Facebook (now Meta) notification that we can prepare an album for you. I said okay, let me have it and I found the complete album of my activities for two years. I just switched off Facebook. I said I refuse to be part of such social media where it is almost tracking me and has got my album year by year, more organised than I do.

Of course, there was another reason for quitting Facebook. I found that they were promoting soft porn, very discreetly, very quietly and I wrote a nasty post about it and then quit. But the social media giants have all the information about the Indian educated class today. Every time you find a long page that these are the terms and conditions, you feel like, Oh! Yeh bhi kaun padhega yaar? Dastakhat maro, click karo, aage badho. (Who will read this? Just sign, click and move to the next item). That is the temptation. All the information about you is there with the social media giants based in USA and we have willingly parted with it. Can you get it back? You can’t. So that is another huge area of concern but I think it has not been highlighted that much in the report.

So, I would say that surveillance is a useful tool for any state. It’s a useful tool but it has to be used discreetly. It has to be used judiciously and there has to be an accountability mechanism for it. All that could be achieved if we have proper regulatory authority. The Indian government has been working on it and their data protection bill is yet to be finalised. It has gone to the Joint Parliamentary Committee and it is yet to be passed by the parliament. But once it is finalised, the Bill has to be checked if it is weighted in favour of the government or does it take care individuals’ privacy concerns. Whether it takes care of all the areas which could create problems for an individual. That still remains to be seen. I would conclude by saying that we need to strike a balance between privacy and the need for security. It won’t be easy. But if you can strike a balance, surveillance would be a useful tool for the government. But if you don’t strike a balance and we give overarching authority to the state, then we are heading for trouble.

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