(The authors, Priyanshi Bainwala and Harjas Singh Gulati are law student from NMIMS School of Law, Bengaluru.)
Introduction
The Rajya Sabha has passed the Telecommunications Bill 2023 and Post Office Bill 2023 signifying a momentous legislative achievement in a bid to bring the archaic acts to the current dynamic standards of society. This significant legislative accomplishment would help in bringing profound transformation in the domains of communications and postal service in India. Although these bills are being lauded by the government under the pretext of bringing efficiency and modernity to an old and decrypt system, the issue of the right to privacy enshrined under Article 21 in these bills remains an uncharted discussion. This blog examines the intricate web of these regulations, scrutinising the potential implications for the right to privacy and drawing parallels to the concept of ‘Big Brother’ in reference to the book, “1984” by George Orwell[i]. It showcases how the notion of mass monitoring, which was envisioned in the 1940s, is today more relevant than ever in the context of fast-paced communication and ever-growing demands for privacy.
The ‘Big Brother’ Concept
The concept of ‘Big Brother’ stems from the idea of mass surveillance of the public in an attempt to achieve total control over thoughts and dissent[ii]. It is a figurative idea of a government wherein the party wields total power over the interception of messages between people and envisions a totalitarian idea of shaping the thoughts which run only in conformity with what the party considers ‘apt and just’. This is envisioned through the lines in the book, “Big Brother is watching you” and by exercising penal powers whenever deviant thoughts and messages of the people are intercepted by the government.
The Orwellian Concept, as also argued in the case of Manohar Lal v. Union of India, clearly establishes the significance of the right to privacy in the light of government’s widespread monitoring and interception of communications. This has been unequivocally violated in the Telecommunications Bill 2023 and Post Office Bill 2023.
Telecommunications Bill 2023: Unveiling the Dilemma of Surveillance.
The proposed replacement of the outdated Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950 with the Telecommunication Bill has ignited a heated debate over the level of government surveillance. The Bill seeks to provide a systematic and up-to-date overview of telecommunication services, networks, and relevant spectrums in response to the outdated nature of telegraph communications in India. Section 20 of the bill confers significant authority to intercept, monitor, and obstruct communication for several objectives, including the preservation of public order and the protection of national security.
There have been concerns that the provision of the bill pertaining to extensive surveillance might potentially undermine the fundamental right to privacy since it would provide the government unparalleled access to individuals’ communications. The need for biometric verification raises questions about its appropriateness and possible infringement on individual freedoms, reflecting the worries seen in cases related to Aadhaar.[iii] The absence of a strong supervisory structure and the shift of regulatory duties from an independent organisation such as TRAI to the central government have led to apprehensions over transparency and accountability. There are concerns about the possible abuse since the government has been given the power to create regulations for ‘safeguard processes’. Nonetheless, the government does not provide clear and precise standards for the above processes, instead relying on a discretionary approach that may result in arbitrary actions if clear parameters are not set.
The Post Office Bill 2023: Enhancing Services while Addressing Privacy Concerns.
The Post Office Bill seeks to replace and revoke the Post Office Act of 1898, thereby introducing a fundamental change in the delivery of postal services. The aim of the proposal is to convert the postal service into an efficient courier service and a supplier of financial services. However, the bill abolishes the government’s exclusive capacity to dispatch letters by mandating that services now provided by India Post must adhere to regulations. Section 9 of the bill grants the government the capacity to intercept parcels sent by India Post based on predetermined criteria, while also establishing a Director General with regulatory jurisdiction.
While the legislation lacks procedural safeguards against interception, the way it exempts India Post from responsibility raises issues over the protection of consumer privacy. The absence of clear consequences in some situations, together with the removal of offences and penalties, has led to debates on the relevancy of legal safeguards and the impact on individual right to privacy. Furthermore, the bill’s financial implications for India Post and its departure from the Consumer Protection Act underline the need to conduct a full examination of its consequences on consumer rights, privacy, and regulation.
Establishing Connections: Big Brother’s Role in Communication
Both the bills, to different extents, promote the overriding theme of increased government oversight of communication channels. The Post Office Bill, with potential implications for mail privacy, and the Telecommunications Bill, with extensive monitoring measures, exemplify a changing landscape where the government’s encroachment on private communications becomes more apparent. The fundamental theme of these tactics is reminiscent of the concept “Big Brother”, when governmental entities exercise invasive monitoring and control over the personal lives of the people. Striking a balance between ensuring national security and protecting the basic right to privacy is a challenging endeavour since it is crucial for maintaining the trust of the people in a democratic country like India[iv]. Privacy is not just an elitist construct but an absolute necessity in the age where ‘Big Brother’ controls the ‘Big Data’.
Recent international legal precedents, such as Big Brother Watch v. United Kingdom highlight the need for an impartial authority to supervise government activities involving mass surveillance which are done in the name of friendly relations towards other states and the protection of national security.[v] It is also necessary that the ‘quality of law’ requirement i.e., “The law should be accessible to those concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”[vi] which is necessary in a democratic society is not to be jeopardized by governments own administrative intentions. Therefore, it may be said that measures requiring mass surveillance should include an extra level of independence to regulate intrusive monitoring and uphold the principles of privacy by acknowledging the distinction between the need and desire for surveillance.[vii]
Conclusion and Suggestions
The Telecommunications and the Post Office Bills of 2023, as they go through the parliamentary process, symbolizes the point where privacy and development collide. Prior to embarking on modernization and efficiency, the government must thoroughly consider the potential encroachment on individual right to privacy. In the celebrated case of KS Puttaswamy V UOI, the court laid down the overarching importance of the right to privacy which is enshrined in Article 21 of the Indian Constitution. It was contended by Justice J. Chelameswar [viii] that these rights are constitutional rights, thereby safeguarding them against any government interference. However, the recent efforts of the government towards modernization by replacing the old bill have failed to address the issue pertaining to the right to privacy.
Given the ever-changing nature of the legislative landscape, it is necessary to adopt a transparent and sophisticated approach in order to address the public’s concerns while also acknowledging the valid needs of the state. There is a need to maintain an equilibrium in order to sustain the principles of democracy, which promote harmonious coexistence of technical advancement and protection of basic rights granted by the constitution. The ongoing discussion around these laws highlights the need for a thorough and productive conversation that paves the way for a future where the whole process is not achieved by sacrificing privacy.
[i] GEORGE ORWELL, 1984, (Secker & Warburg, 1949)
[ii] Ibid. ,1
[iii] THE ECONOMIC TIMES, https://economictimes.indiatimes.com/tech/technology/aadhar-data-leak-personal-data-of-81-5-crore-indians-on-sale-on-dark-web-report/articleshow/104856898.cms?from=mdr, (31st October 2023)
[iv] Dembi, Divyanshu, Privacy & National Security: A Balancing Act?, SSRN, (January 30, 2021), http://dx.doi.org/10.2139/ssrn.3953357
[v] Henrik Skaug Sætra, Freedom under the gaze of Big Brother: Preparing the grounds for a liberal defence of privacy in the era of Big Data, Vol. 58, TECHNOLOGY IN SOCIETY, (2019), https://doi.org/10.1016/j.techsoc.2019.101160.,
[vi] Lashmankin and Others v. Russia, App. No. 57818/09
[vii] GLOBAL FREEDOM OF EXPRESSION, https://globalfreedomofexpression.columbia.edu/cases/big-brother-watch-v-united-kingdom/, (07th January 2023)
[viii] Krishnadas Rajagopal, SC verdict on right to privacy: Judges demolish Centre’s stand that privacy is elitist concept, THE HINDU, (24TH August 2017, 07:53 pm), https://www.thehindu.com/news/national/sc-verdict-on-right-to-privacy-what-each-judge-had-to-say-about-privacy/article19553856.ece
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