Keynote Address: Justice Jasti Chelameswar

KEYNOTE ADDRESS BY JUSTICE JASTI CHELAMESWAR

Edited Excerpts from SPIR 2023 Launch by Former Supreme Court Judge and Former Chief Justice, Kerala High Court and Gauhati High Court

I don’t know how many of you remember when the Aadhar scheme was challenged. Puttaswamy judgement and the question of whether there is a fundamental right to privacy under the Constitution arose in the context of a challenge to the Aadhar scheme, which was a non-statutory scheme to start with, propounded by the previous political dispensation. The matter was lingering in the court for a few years and eventually,

it was heard by a bench of nine judges of which I was a part.

At an earlier stage, when the matter was heard by a Bench presided over by me, a very vehement submission was made by the then Attorney General, saying that there is no fundamental right to privacy under the Indian constitution as per an old, 1964 judgement. In support of the submission, a stray sentence from this eight-judge bench judgement was picked up, which did say that there is no fundamental right to privacy in the Indian Constitution. The Supreme Court very rarely sat in the last 75 years in benches of even numbers (barring two judges); the rest of them were odd, the highest being 13 so far in the Kesavananda Bharati case. Vehement submissions were made and the matter got referred to a larger bench. When the argument was going on, a lot of public opinion was generated by the previous political regime, which had originally propounded the scheme, bitterly opposing it later. Finally, when the Supreme Court declared in a unanimous judgement by nine judges that there is a fundamental right to privacy under the Constitution, both the political parties and their respective spokespersons claimed vindication as they supported the citizens’ right to privacy. Everybody wants to take advantage of the public opinion and ride the crest of popularity.

On Surveillance

As Mr Prakash Singh pointed out, surveillance and data collection have existed from the time of Chanakya. Citing the Ramayana, he said that the episode of Sita’s exile was based on information gathered by Rama. Not only in India, but anywhere in the world where there is an organised state.

There are justifications for this too. Human beings are not angels barring a few great souls, and 99 percent of us are personifications of rascality in different degrees. Therefore, there is a need for an organised state. The minute we have an organised state it has its own compulsions. If you can recollect, during 26/11 at Taj Hotel, Mumbai, a lot of criticism said that there was a total intelligence failure. If you are talking about intelligence failure, you’re tacitly approving that data collection for intelligence is necessary for the country. This has always been an aspect of the state administration.

I’m sure some of you would have certainly read this book titled ‘21 Lessons for the 21st Century’ by Yuval Noah Harari. He said it will be simply impossible for us to imagine how this world is going to be in 2050. He says that the rapid progress that is being made in artificial intelligence and biotechnology are the factors which are going to change this world beyond all recognition.

With this kind of state of affairs and the progress of technology, the problem of surveillance becomes more and more intense. It is possible because all of us voluntarily contribute data to the state. The minute we have a smartphone, the minute you operate a computer or iPad or a tablet, a lot of your information goes on onto the net and any individual can access it. This is inevitable.

On State and Surveillance

State also has its own reasons to collect data and it has reasons to keep surveillance on certain classes of individuals or groups, depending upon the situation. Notwithstanding the fact that the Supreme Court declared privacy to be a fundamental right, one basic principle of jurisprudence is that no right in law is absolute. Every right comes with a corresponding obligation which imposes limitations on the rights. So is the right of privacy. When the state is collecting for whatever reasons and justifications, is there an amount of transparency in that process? Is the data being collected in a manner which can be examined and assessed? Whether the data is meant really for the welfare of the people? Whether a particular activity of the state like surveillance or data collection is meant for the security of the nation? Ultimately, any act of the state is required to be meant for the welfare of people. Depending on the nature of the right, there are different tests and parameters as well as limitations like national security, decency, etc. in the Constitution.

Whether this collection of information or surveillance on certain individuals or organisations is really meant for the welfare of the country as a whole or the security of the state honestly is the question. Such an assessment is only possible if we have a proper system and a law which regulates the surveillance and collection of data by the state. Only then would we be able to make an assessment of whether all this exercise is genuinely done for the benefit of the people or to just suit the political needs of those in power.

Perhaps, in a good number of cases, the information is collected, not perhaps in the larger interests of the society but to suit the political convenience of those in power. It is nothing new. I don’t know how many of the younger generation are aware of the Watergate scandal. President Nixon authorised the surveillance of his opponents. This is a practice which went on and on in human history and it will continue to go on.

Are we, the people of India, in a position to bring the necessary democratic pressure on the governments? When I talk about the government, I don’t talk about any particular political party. Whichever political party is in power, the only change is in the hardware, the software remains the same and everybody follows the same practices. Of late, we hear a lot of complaints about the abuse of government agencies, particularly the CBI. The political party which is shouting hoarse about the misuse of CBI, managed this country for over 40 years before and yet they never bothered to make CBI any more stable, statutory and rational. Today they find the present dispensation is abusing it. If only we had a rational law dealing with CBI and the specific, defined areas where it could intervene.

On Citizens, Surveillance and Privacy

The question is - Can we, as a society, put democratic pressure on the lawmakers of this country, the parliament or the state legislatures to rationalise these practices and these institutions?

What is your right to privacy? Broadly speaking, talking about data collection, CCTV cameras, surveillance in public places, etc is a very very minor aspect of the right of privacy. Because the right to privacy is concerned with something that is personal. The minute we enter a public space, we are no more in a private area and our right to privacy becomes very limited.

As for the need of the state to collect information, what is the policeman doing on a railway platform? They are keeping surveillance on the events happening there and we accept their presence without any question. Be it a railway station, bus stand or a business centre, they keep a watch. Since the last 200 years or so, it has been a part of the system and we accept it. Now, technology is trying to slowly replace that physical supervision by the police constantly through CCTV cameras. It has very little to do with your right to privacy.

In law, there are three elements which describe or constitute privacy - Sanctuary, Repose and Intimate Decisions. Sanctuary means your own home, where you are absolutely free, subject of course to indulging in hazardous and nefarious activities. Intimate decision-making process is another aspect which revolves around what I eat, how I dress up, whom I marry or whom I don’t want to interact with. But the minute I go out, what I am doing in public is open to the public gaze. CCTV cameras are installed by the state. If I do not and cannot have an objection with going out in front of thousands of people watching me, I don’t know why there should be any objection for a CCTV camera in a public place.

On the other hand, the state may have justifications to install those too. One of the findings is that the installation of CCTV cameras did not result in reduced crime. The problem is not with the camera but with the way data was utilised by the investigating agencies. If the investigating agencies did not make proper use of the data collected through the CCTV cameras, if they were not efficient enough to utilise the data then naturally the crime rate would not come down. The other thing is personal data through tapping of telephones or installing electronic equipment in offices, etc. I will not refer to the names but I remember, a decade back, a senior cabinet minister complained that his office was bugged and had an unseemly quarrel with another senior minister.

These things are objectionable unless established that they are absolutely in the larger public interest. The establishment of such a fact that this activity is required in the larger public interest depends on the existence of verifiable data and recorded material by persons who are resorting to this kind of surveillance. The requirement is to create a legal regime around it. Unfortunately, the old Telegraph Act is being amended and only the title is changing, the content doesn’t change.

I was joking with my friend here that this is the progress that we have made on the Amrita Mahotsava of Azadi. You have changed the names but not the content, from 1875 to 2023, in roughly 150 years or so. I think the requirement is more to exert democratic pressure on the lawmakers to create more rational legal systems that regulates such activities for the time being.

I thank the organisers for giving me the honour of releasing this report.


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January-March, 2023