Despite a landmark decision affirming privacy as a fundamental right from the Indian Supreme Court two years ago, one that would send reverberations around the world, it would seem today as if the Indian discourse on privacy has hardly moved forward. India still doesn’t have a data protection law, the government continues to talk about people’s information as a national resource and the actual application of the limited existing privacy rules is woeful.
That is what makes the Bombay High Court decision from this week extremely valuable. The court quashed three orders from the Union Home Ministry allowing investigation agencies to tap the phone calls of a businessman that it claimed was involved in a bribery case. What’s more, having found the orders themselves illegal, the court directed the authorities to delete the taped recordings, stating that they were inadmissible as evidence since they had been illegally obtained.
The court’s decision was straightforward. The Telegraph Act, which governs phone lines and any surveillance associated with them. But the Act only allows for interception of phone calls in two cases: “either the occurrence of any public emergency or in the interest of public safety”. The judgment is clear that phone tapping, at least in a bribery case, does not fit either of these definitions. To arrive at this decision it also used the test of proportionality and legitimacy as laid out in the landmark Puttuswamy judgment upholding a fundamental right to privacy.
More importantly, as lawyer Gautam Bhatia points out, once the court decided that law and order was not a reason to violate this fundamental right, it also dealt with the question of what should be done to evidence that had already been illegally obtained.
“The [authorities] argued, however, that even if there had been illegality in the collection of the evidence, they should be entitled to use it in the course of the criminal prosecution,” Bhatia writes. “They relied upon several judgments that had held that as long as evidence was relevant, it could be introduced in a trial, regardless of the legality of how it was obtained.”
The court did not accept this argument. It concluded that if it allowed the government to use evidence that was collected even while violating fundamental rights, that “would amount to declaring the government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens”. This would make fundamental rights meaningless.
The judgment comes at an important time for India, where the government treats personal data as its own property and has willy nilly gone ahead with projects – like a national facial recognition system – without considering how it might violate fundamental rights. India does not have a data protection law, one that was promised to the Supreme Court years ago. The draft of that law that does exist says that surveillance regulation will come through a separate law, which has not even been contemplated yet.
In lieu of both of these pieces of legislation, which would actually operationalise Indians’ fundamental right to privacy, it is heartening to see the courts step in and assert that the government cannot trample upon fundamental rights without being held accountable.