Supreme Court judge, Justice M.M. Sundresh, on Saturday said that though they cannot hinder the growth of technology, but the need of the hour was to devise ways, so as to prevent its misuse by falling into wrong hands.
Speaking during the third Justice H.R. Khanna Memorial National Symposium, organised by the Confederation of Alumni for National Law Universities (CAN) Foundation in the memory of former Supreme Court judge, late Justice H.R. Khanna, Justice Sundresh said the duty to preserve privacy as a cherished right was entrusted on all three pillars of democracy through the prism of proportionality, which would go a long way in the task of nation building.
Delivering the keynote address on ‘State Surveillance & Privacy – The Lakshman Rekha Between’ during the pre-lunch session of the event, Justice Sundresh said the courts of the country have acted with alacrity on issues related to privacy. He said it was a complex matter, which would haunt the courts in the coming years.
India, which has taken over China as the most populous country, was one of the biggest markets for smartphones, noted the Apex Court judge.
He said the growth of Artificial Intelligence (AI) and Machine Learning (ML), coupled with multinational agreements, has increased the access to information, adding that it was obvious that this would lead to raising of questions on privacy protection.
He said data accessibility had manifold advantages and some disadvantages too. An individual not willing to give access to a certain information would want protection of privacy.
Justice Sundresh said State actors may require legislative intervention to uphold privacy through the doctrine of proportionality. He said it was the need of the hour to act on the voices of concern expressed in the Puttaswamy judgment. The concept of proportionality was the core factor, he added.
The Supreme Court judge suggested that there must be a codified law enabling the law agencies to conduct surveillance, but with specific adherence to part III of the Constitution. The implementing agencies of such a law must be high dignitaries.
Both the enactment and action would constitute a curtailment of privacy, therefore, the statute should specify objectives and alternatives if available should be used, he added.
Appreciating the CAN foundation for its efforts in spreading legal education, Justice Sundresh said Justice Khanna would continue to be a leading light for years to come.
He quoted renowned novelist George Orwell, who once wrote that it was dangerous to let thoughts wander in public spaces or when within the range of a TV screen.
He said the term ‘Surveillance’ originated in 1883 in France, but the concept was as old as civilisation. It was important to peek into history to understand its contours.
The Apex Court judge said Rigveda referred to the use of spies. One of the crucial responsibilities of a diplomat was sending regular updates to their home kingdom, including periodical reports.
With the onset of the great French revolution, liberty, equality and fraternity became the foundation of a society, he noted.
Speaking of inventions of telegram and telephone, followed by surveillance through phone taps and tapping of messages through electronic and radio waves, Justice Sundresh said the need for Surveillance by the states increased during the peace time and became more aggravated during the cold war.
Surveillance did not stop with the enemy alone, who were usually foreigners, but it was also used against the States’ own citizenry. The States started cooperating to share such technology, which became a tool to act in anticipation of an untoward event.
He said the 9/11 attack (on the US) was indeed a watershed moment. As the actions caused unprecedented damage, the need for stronger surveillance was strongly felt.
Stating that the legislations were enacted to give sweeping owners to the State agencies, Justice Sundresh said the Patriot Act gave the enforcement agencies uncontrolled sweeping owners to investigate the individuals suspected of terrorism and other crimes. It further permitted use of CCTVs to monitor the citizens en masse.
As per the Apex Court judge, Delhi claimed top spot surpassing even Beijing with more cameras for surveillance in a survey report. Privacy as a concept goes back in time to when the first human became self aware and could articulate, well before even the homo sapiens came on earth.
In this context, Justice Sundresh mentioned the August 24, 2017 verdict of the Supreme Court, which ruled that Right to Privacy was ‘intrinsic’ to life and ‘personal liberty’ and was inherently protected under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.
He suggested that there must be a law to justify any encroachment on the right to privacy, which must have a legitimate objective and should pass the doctrine of proportionality.
He said the Constitution was drafted and adopted in historical context, framed by those who faced oppression, however, many of the contemporary problems would not have been present even.
Noting that no one could have a monopoly in ability or forbearance to anticipate the future, he said the Institutions and the Constitution must have flexibility and they should adapt to rapidly growing changes.
He said the constitutional interpretation was a concept of dispensing justice and that one cannot remain unmindful of the right to privacy.
He noted that the modern world has become difficult to live in as the cost of peace was high. Any nation with weak surveillance tools was perceived as vulnerable to attack. Justice Sundresh said surveillance may also be needed in the larger interest of public.
He said while surveillance has become a part of governance, the concern was on using it on own citizens. It would become difficult to bring a criminal case to its conclusion in ocular witnesses alone as crimes did not always happen in someone’s presence. Human memory may be vulnerable and offences may change, he added.
Stating that technology could play a pivotal role in bringing a culprit to book, Justice Sundresh said it cannot be deployed against each and every category of persons. Phone tapping groups were some areas where it can be affected, he added.
The Supreme Court judge said tracing a fugitive on the run had become more sophisticated now with every citizen having a mobile.
He gave the example of movies Enemy of the State (1998) and Zero Dark Thirty, wherein the advanced surveillance tools helped in nabbing the culprit.
When asked to choose between litigation or corporate job for the young lawyers, Justice Sundresh said the bright and ambitious minds should come to litigation since sky’s the limit now. New fields were opening up, he noted, adding that litigation was the way forward for the young legal professionals.
The Supreme Court judge further said that the functions of a civil servant were curtailed due to various reasons, but as a judge (who pursued the judiciary), the role would be much broader and independent.
CAN Foundation, in collaboration with the National Law Institute University, Bhopal and the Hidayatullah National Law University, Raipur, organised the event.
Supreme Court judge Justice Dipankar Datta, Delhi High Court judge Justice Gita Mittal, Senior Advocates S. Guru Krishna Kumar, Shyam Divan and C.S. Vaidyanathan graced the occasion, among others.