The promiscuous use of the word “Snoopgate” has caused more harm than good. Although it draws reference to Watergate, the first political scandal involving illegal high-tech government surveillance, it confuses snooping with surveillance. Snooping and surveillance are different things. While snooping is an act of a private individual prying on or stalking another, surveillance is an organised activity carried out by the government. The term "Snoopgate" has also over-politicised the incident in which, just like Watergate, possibilities of a proper investigation – let alone justice – appear quite dim.
On May 9, the Supreme Court allowed a woman and her father to withdraw their petition and knock on the doors of the Gujarat High Court instead. Invoking their right to privacy, the petitioners urged the court to restrain the central government from setting up a commission of enquiry to look into claims made by two news websites, Cobrapost and Gulail, that in 2009, Amit Shah, the Gujarat home minister at the time, on Narendra Modi’s instructions, had used the state Anti Terrorism Squad, the Intelligence Bureau and the Ahmedabad Police to subject this woman to detailed round-the-clock surveillance. This included intercepting her telephonic communications as well as physically tailing her.
The woman’s father has repeatedly claimed that he had orally requested Modi, with whom his association stretches to a couple of decades, to keep an eye on his daughter while she was visiting her ailing mother in an Ahmedabad hospital. He has also stated that his daughter was aware of the going-ons and had consented to being kept under watch. Both have invoked their right to privacy because they fear that an investigation will reveal the nature of the woman's relationship with Modi and other intimate personal details that are best kept out of the public eye and knowledge.
It could possibly be argued that from the accompanying maelstrom of conjectures and surmises that some of these details might be potentially embarrassing to a woman, and hence, privacy isn't a specious plea to halt the probe. However, an equally pressing concern is that of public interest. Public interest is paramount because of the actors in the episode and the machinery of surveillance that was used.
Illegal surveillance
In 2010, Saikat Datta detailed how the central intelligence agencies were flouting all laws and ignoring judicial mandates while keeping specific sections of the population, especially Muslims, under surveillance. This was as egregious and alarming as the New York Police Department’s covert operations of a similar nature, which was halted after a national outrage in the United States. In the Gujarat case, all the intelligence agencies were put on the task. Surveillance per se is not illegal in India, provided mandatory provisions are followed.
The most important provision is Rule 419A of the Indian Telegraph Rules, 1951, which makes it compulsory for the state home secretary and the inspector general of police’s permission to be sought before any communication is intercepted. Moreover, under the Indian Telegraph Act, 1951, communication can be intercepted only on account of a public emergency or for public safety. If either of those two preconditions is satisfied, then the government may cite any of the following five reasons: “the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or for preventing incitement to the commission of an offence”. As per reports, none of those who were in charge at that time had any inkling of what was going on, thereby making the entire operation illegal.
The Gujarat government, on its part, has tried every manoeuvre to hide this patent illegality. In November 2013, it set up the Justice Sugnyaben Bhatt and KC Kapoor Commission of Inquiry whose terms of reference do not inspire confidence. This is mainly because it was tasked to challenge the authenticity of the tapes released by the two media channels and also unearth any political conspiracy behind the leaks. Moreover, this Commission’s jurisdiction was limited to only the present incident, thereby violating Section 3 the Commissions of Inquiry Act which lays down that only a matter of public importance can be investigated by such a probe panel.
In December 2013, a PIL in the Gujarat High Court challenged the legality of the Commission, but the case is still pending. The Congress government at the Centre announced in December that it would also probe through a commission of inquiry of its own, but that got mired in political muckraking.
Compelling public interest
Though there is no specific legislation on privacy, a 1996 Supreme Court judgement said it was part of a person’s fundamental right to life. In the same ruling, the court was circumspect enough to rule that such a right isn’t an unlimited one, and shall always be contingent upon public interest. Earlier, in 1994, the court had ruled that public figures have a lesser claim to privacy than private individuals. And, as the Delhi High Court unequivocally held in 2010, even Supreme Court judges aren’t exempted from mandatory disclosure if overwhelming public interest demands that personal details are put out in the public domain.
Does the Gujarat case qualify to be in this league? The very circumstances prove that it does. If the ATS and intelligence agencies can be deployed to gather intelligence on a person on the whims and caprices of a chief minister, then it’s evident that civil liberties are in grave jeopardy. What was the compelling public interest in putting a woman under surveillance because her father asked the chief minister to do so, using his personal friendship with the chief minister? The petitioners’ claims of privacy look extremely suspect, now that Modi has become so powerful. It doesn't take much to intimidate someone into filing a petition. This isn’t the first time the right to privacy has been invoked to conceal sordid illegalities.
One has all the reasons to be critical of the Sugnyaben Bhatt Commission, but the Gujarat High Court still has the chance to accord compelling public interest the importance it deserves. Secrecy, after all, is the lynchpin of autocratic abuse of power.
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On May 9, the Supreme Court allowed a woman and her father to withdraw their petition and knock on the doors of the Gujarat High Court instead. Invoking their right to privacy, the petitioners urged the court to restrain the central government from setting up a commission of enquiry to look into claims made by two news websites, Cobrapost and Gulail, that in 2009, Amit Shah, the Gujarat home minister at the time, on Narendra Modi’s instructions, had used the state Anti Terrorism Squad, the Intelligence Bureau and the Ahmedabad Police to subject this woman to detailed round-the-clock surveillance. This included intercepting her telephonic communications as well as physically tailing her.
The woman’s father has repeatedly claimed that he had orally requested Modi, with whom his association stretches to a couple of decades, to keep an eye on his daughter while she was visiting her ailing mother in an Ahmedabad hospital. He has also stated that his daughter was aware of the going-ons and had consented to being kept under watch. Both have invoked their right to privacy because they fear that an investigation will reveal the nature of the woman's relationship with Modi and other intimate personal details that are best kept out of the public eye and knowledge.
It could possibly be argued that from the accompanying maelstrom of conjectures and surmises that some of these details might be potentially embarrassing to a woman, and hence, privacy isn't a specious plea to halt the probe. However, an equally pressing concern is that of public interest. Public interest is paramount because of the actors in the episode and the machinery of surveillance that was used.
Illegal surveillance
In 2010, Saikat Datta detailed how the central intelligence agencies were flouting all laws and ignoring judicial mandates while keeping specific sections of the population, especially Muslims, under surveillance. This was as egregious and alarming as the New York Police Department’s covert operations of a similar nature, which was halted after a national outrage in the United States. In the Gujarat case, all the intelligence agencies were put on the task. Surveillance per se is not illegal in India, provided mandatory provisions are followed.
The most important provision is Rule 419A of the Indian Telegraph Rules, 1951, which makes it compulsory for the state home secretary and the inspector general of police’s permission to be sought before any communication is intercepted. Moreover, under the Indian Telegraph Act, 1951, communication can be intercepted only on account of a public emergency or for public safety. If either of those two preconditions is satisfied, then the government may cite any of the following five reasons: “the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or for preventing incitement to the commission of an offence”. As per reports, none of those who were in charge at that time had any inkling of what was going on, thereby making the entire operation illegal.
The Gujarat government, on its part, has tried every manoeuvre to hide this patent illegality. In November 2013, it set up the Justice Sugnyaben Bhatt and KC Kapoor Commission of Inquiry whose terms of reference do not inspire confidence. This is mainly because it was tasked to challenge the authenticity of the tapes released by the two media channels and also unearth any political conspiracy behind the leaks. Moreover, this Commission’s jurisdiction was limited to only the present incident, thereby violating Section 3 the Commissions of Inquiry Act which lays down that only a matter of public importance can be investigated by such a probe panel.
In December 2013, a PIL in the Gujarat High Court challenged the legality of the Commission, but the case is still pending. The Congress government at the Centre announced in December that it would also probe through a commission of inquiry of its own, but that got mired in political muckraking.
Compelling public interest
Though there is no specific legislation on privacy, a 1996 Supreme Court judgement said it was part of a person’s fundamental right to life. In the same ruling, the court was circumspect enough to rule that such a right isn’t an unlimited one, and shall always be contingent upon public interest. Earlier, in 1994, the court had ruled that public figures have a lesser claim to privacy than private individuals. And, as the Delhi High Court unequivocally held in 2010, even Supreme Court judges aren’t exempted from mandatory disclosure if overwhelming public interest demands that personal details are put out in the public domain.
Does the Gujarat case qualify to be in this league? The very circumstances prove that it does. If the ATS and intelligence agencies can be deployed to gather intelligence on a person on the whims and caprices of a chief minister, then it’s evident that civil liberties are in grave jeopardy. What was the compelling public interest in putting a woman under surveillance because her father asked the chief minister to do so, using his personal friendship with the chief minister? The petitioners’ claims of privacy look extremely suspect, now that Modi has become so powerful. It doesn't take much to intimidate someone into filing a petition. This isn’t the first time the right to privacy has been invoked to conceal sordid illegalities.
One has all the reasons to be critical of the Sugnyaben Bhatt Commission, but the Gujarat High Court still has the chance to accord compelling public interest the importance it deserves. Secrecy, after all, is the lynchpin of autocratic abuse of power.