4 min read.Updated: 30 Jul 2021, 01:27 AM ISTRahul Narayan
Foucault describes surveillance and discipline as tools of punishment that mould the behaviour of subjects to comply with ‘norms’ that get internalized by them to deliver docility.
This piece is part of a Mint Debate on Pegasus snooping row. Go here for a counter view.
Governments snoop. This appears to have always been the case, whether at the time of Chanakya over 2,000 years ago, whether in Georgian England, or even now. So why is there such a visceral revulsion in response to the Pegasus disclosures among civil libertarians and Indian citizens alike?
First, the scariest thing about Pegasus is not merely that it enabled spying, but that it works by injecting malware into one’s personal device. The possibility that malware like this can be used to plant ‘evidence’ of wrongdoing, as has been alleged in the Bhima Koregaon cases, makes this so much worse than garden-variety snooping. This is hacking and the digital equivalent of planting false evidence, not merely phone-tapping. From a legal standpoint, it is far from clear that using Pegasus can be justified under the Indian Telegraph Act 1885 or the Information Technology Act, 2000. From a moral standpoint, it is difficult to understand the larger public purpose of using Pegasus when simple old-fashioned, legally-sound surveillance would have done what was needed without hacking people’s devices.
Second—and this is what has raised so much alarm—is the list of people who were reported to be “of interest". The list features mainstream opposition politicians, constitutional functionaries, bureaucrats and ministers, journalists, civil libertarian activists, and the complainant in a sexual harassment claim, among others. If these people were under ordinary surveillance, it would’ve been bad enough. That their personal devices were potentially hacked is outrageous.
That hoary old chestnut ‘data is the new oil’ does have a kernel of truth amid a wealth of false equivalence. Data is valuable and personal data is more valuable still. It is valuable for companies that aim promotional messages at potential customers. It is valuable for intelligence and law enforcement agencies in stopping imminent threats. But it is a dangerous tool to put unsupervised in the hands of a government over citizens in a democracy. It is one thing to have accurate information on threats to public security, and quite another to have knowledge of who all attend opposition party meetings or public marches, and listen to everything discussed in the privacy of a home or at a meeting. If snooping empowers the state, it also reduces the agency of people. As Justice Subba Rao memorably wrote in his landmark Kharak Singh case dissent, a person who is followed everywhere is not free—the whole country is his prison. Michael Foucault, the French philosopher, describes surveillance and discipline as tools of punishment in the modern state. They mould the behaviour of subjects to comply with “norms" that are internalized by them, thereby creating “docile bodies". If you feel the eye of ‘Big Brother’ on you, you will simply comply, not question. In the 1800s, legal philosopher Jeremy Bentham described a prison he called a Panopticon. Its inmates would always “behave" because they could never be sure of whether they were being watched or not. Modern surveillance technology creates a digital panopticon. This is useful for authoritarian regimes to create docile bodies. However, docile bodies are not the material on which democratic and republican polities rest. We are citizens, not subjects. Participating in the democratic process requires the sort of “civic courage" that surveillance goes a large way to destroy.
In Marcel vs. Commissioner, Lord Brown Wilkinson wrote: “…if the information obtained by the police, the Inland Revenue, the social security offices, the health service and other agencies were to be gathered together in one file, the freedom of the individual would be gravely at risk. The dossier of private information is the badge of the totalitarian state."
If the right to privacy means anything at all, it is the right to be free from unlawful surveillance. In Semayne’s case (1605) came the famous dictum that every man’s home was his castle and even the King of England would need a warrant to enter. In Huckle vs. Money (1763), Lord Camden described a nameless warrant to enter a house as worse than the Spanish Inquisition and intolerable to freedom. The Fourth Amendment in the US Constitution was enacted to protect citizens from unlawful searches and seizures. In Katz vs. United States, the US Supreme Court invalidated a Federal Bureau of Investigation wiretap on constitutional grounds, based on privacy. In India, in Kharak Singh, Gobind, PUCL and, above all, Puttaswamy, court rulings have said much the same thing.
Because mass surveillance is indisputably bad for the health of a democracy as well as violative of human rights, the power to snoop has always been subject to rigorous safeguards in terms of who can be spied upon, on what cause, how such spying should take place, how long it can continue, and how long records are kept. People cannot be subjected to intrusive surveillance on someone’s whim and fancy. Each instance of snooping should require a warrant based on probable cause and judicial oversight so that the demands of security and freedom can be balanced.
If this scandal has any silver lining, it is simply that it has brought these issues into the limelight. Hopefully, this will result in surveillance reform. We need a law aimed at serving democratic India and not creating docile bodies. In Carpenter vs. United States, the US apex court held that constitutional protections cannot be whittled away by technological advances. Perhaps we need a judicial determination that without a warrant, every man’s phone is as inviolate as his home.
Rahul Narayan is an advocate-on-record at the Supreme Court of India
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