By Vishnu Makhijani
New Delhi, Oct 28 (IANS): An independent and permanent tribunal, manned by retired or serving judges, alone can deliver on the disputes pertaining to the privacy of citizens and organizations, especially since the Supreme Court elevated the right to privacy to the status of a fundamental right in 2017, says a Senior Advocate of three decades standing whose seminal book on an issue that is increasingly taking centre-stage has just hit the stands.
"There is a need for an independent and permanent tribunal as disputes with respect to violation of the right to privacy will continue to arise," Vivek Sood told IANS in an interview on his book, "Right to Privacy – Arguing for the People" (Thomson Reuters).
Noting the "potential chilling effect" on the right to privacy and freedom of speech, the Supreme Court on Wednesday set up a three-member expert committee headed by one of its former judges to probe the alleged use of Israeli Pegasus spyware against a spectrum of Indian citizens, including politicians and journalists. In doing so, the court rejected a government offer to establish its own committee to examine the issue.
The court also made it crystal clear that the Centre's argument of national security, in the context of whether it used the Pegasus spyware, cannot be used as a "free pass" whenever a matter is taken up for judicial review.
"In doing so, the Supreme Court has asserted the need for an independent probe (devoid of government influence) into the matter," Sood said.
"I have also stressed in my book on the need for an independent tribunal in dealing with disputes such as the ‘Toolkit case' (Congress versus BJP) and those arising under the Intermediaries Rules 2021 which direct social media intermediaries to disclose information as to the first originator of messages to law enforcement agencies investigating certain crimes," he added.
Setting the tone for the book, Sood writes in Chapter 1 that privacy "in its simplest form, allows each human being to be let alone in a core which is inviolable. The expression ‘let me alone' explains privacy in its essence. ‘Informational privacy' implies protection of information about a person from usage in the virtual world beyond what is necessary for providing a service to such person".
"With the invasion of the Internet in our lives, the question of whether the right to privacy is a fundamental right or not assumes significance for every Indian. A large section of the Indian population uses the Internet to interact, communicate, and transact to avail services and for making online purchases. There are layers of innumerable service providers and other virtual players that include Internet Service Providers (ISPs), search engines, email service providers, Internet telephony providers, communication and interaction platforms (WhatsApp, Facebook etc), payment gateway providers, online stores, and so on. The list is endless. We now live in a global in-information based society. Information technology governs virtually every aspect of our lives. In this information age, privacy has assumed critical significance as never before," Sood writes.
Chapter 2 highlights the minority opinion of Justice Dhananjay Y. Chandrachud in the Aaadhar case "that has gone unnoticed by citizens and privacy activists. Justice Chandrachud has found the Aadhar project to be in violation of the right to privacy of the citizens and is vulnerable to citizens being kept under surveillance by State and non-State entities", Sood writes.
Chapter 3 critiques the Privacy Policies of Social Media Platforms ‘de hors' (outside the scope of) the Personal Data Protection Bill 2019 that is still to be made a law.
Chapter 4 deals with three major controversies that erupted during 2021: Toolkit, Intermediary Rules and Pegasus.
Chapter 5 discusses the Personal Data Protection Bill 2019.
Chapter 6 is titled ‘Offsprings from the Womb of Privacy' and deals with issues like LGBT autonomy, Adultery, Adult Entertainment, Right to drink, Sexually Explicit Material, and Sexual Privacy.
Sood, during the interview, vociferously defended a full chapter of 44 pages in the 165-page book to Justice Chandrachud's dissenting opinion in the Aadhar case.
"It might be a dissenting judgment but it is important to note for posterity because it points to the risk of the ‘big brother is watching syndrome' in future, that was first enunciated by Justice Sanjay Kishan Kaul (in 2017)," Sood said.
He also noted that the Personal Data Protection Bill 2019 "is a seemingly robust measure but it is still in a (parliamentary) committee and it is to be seen when and what form it is passed by parliament. Even here, there are bound to be issues of interpretation, as happens with all laws, and hence the need for an independent and permanent tribunal on privacy".
"This book is for the people to read and form their opinions on the issues raised therein. The right to privacy is significant for every citizen of the country. Every citizen must take cognizance of the threats to privacy from State and non-State entities. Issues with respect to privacy will affect every citizen and hence must be addressed by one and all.
"I have batted for the privacy of the people of my country. I have argued for the privacy of my people all through the book," Sood maintained.
This makes it an essential read and deserves to be translated for wider dissemination.
This is Sood's second book written during the pandemic after "Emergence of Commercial Justice: Insolvency and Arbitration" that was released earlier this year. A third book, "Progress of the Indian Economy: Legislative Pro-Activism Since 2015", is slated for release in January 2022 and a fourth, "Chaff and Grain, Criminal Injustice and Reforms" in April 2022.
"No more for at least two years," Sood said wryly.