On 20th December, 2019 Indian Government asked IITs, IIMs and other varsities to track social media posts of their students. HRD ministry justified it by saying that the tabbing of social media accounts of students and teachers to ensure incidents like Jamia violence is not repeated. This surveillance is not just restricted to social media platforms like Facebook, Twitter, etc. but also includes WhatsApp groups of students and faculties. Though the HRD ministry has denied the release of any such directives yet there are plethora of evidences which speak otherwise.
This is not the first time that the present government has been in question regarding privacy rights. Back in July, 2019 the HRD Ministry had urged students to follow its handle. However, such a directive was said to be just an attempt to ‘connect’ with the students and not monitor their activities. Looking at the previous instances, the statement of the government in this regard is hard to believe in.
This blog aims to examine the legality of such directives, in contrast with article 19 and 21 of Indian Constitution and with a special emphasis on K Puttaswamy Case, which are being issued under the garb of maintaining peace, morality and also for ensuring check on spread of rumors and violence.
Social Media Surveillance and K. Puttaswamy Case
Right to Privacy was declared to be fundamental right under article 21 of the Indian Constitution in the case of K Puttaswamy v. Union of India (2017). This decision was given by a nine judge bench which overruled the previous decisions and held that Right to Privacy was well within the scope of Part III of Constitution and hence was eligible to be termed as a fundamental right.
When we look at the background of this case, we find that the case was filed as a result of the stand of Attorney General who stated that Right to Privacy was not a fundamental right and cited the cases of Kharak Singh v. Uttar Pradesh and M.P. Sharma v. Satish Chandra to defend the government’s stand on mandatory linking of AADHAR to receive subsidy and other government benefits.
A constitutional bench was set up to determine the validity of Right to Privacy for good. The bench overruled the previous decisions and held that those decisions were inconsistent with the present era and hence laid down Right to Privacy as a fundamental right guaranteed under article 21 of constitution. The court adjudged that the right to bodily integrity, autonomy over personal decisions, and protection of personal information – these all fall within the ambit of Right to Privacy. At the same time, the court also noted that this right was not absolute – it permitted exceptions, should there be a legitimate aim of the state, and the invasion of privacy was proportional to the object sought to be achieved.
Tabbing Students: Justified or Unjustified?
The directive to constantly monitor the social account of students is prima facie detrimental to the spirit of privacy. When we look at the decision of the apex court in K Puttaswamy case, we can see that Right to Privacy is not absolute and certain restrictions can be imposed on it. However, for laying down the restrictions two grounds need to be satisfied - first, there must be a lawful ground on which the state could justify the invasion of privacy, and second, the infringement must be proportional to the apprehended damage to be caused. The government can easily justify its stand as far as the first ground is concerned, as they can showcase it as an effort to control future violence. But tables turn when it comes to the second ground, because the proportionality can in no way be justified as there lies no ground to monitor all students throughout Indian Universities to prevent a few cases of violence. The proportionality of monitoring is in no way justified to the extent of surveillance being proposed in the directives.
Such surveillance would lead to highly intrusive and disturbing presence of state in our day to day affairs and people would be reluctant to speak freely owing to the fact that they are well aware of them being under surveillance day and night. From every like to every comment of theirs, they are very well aware of the state’s – “We are watching you” policy. This in turn would lead to formation of a surveillances state and such constant presence of state machinery can only be justified in totalitarian regimes and not democracies like India.
Concerns regarding government policies aimed to surveillance citizens’ social media accounts were raised in India after the Union Information and Broadcasting Ministry opened a tender to create a Social Media Hub in April, 2019. The social hub was seen as a move of the government to monitor the social media accounts of individuals to index their views about government policies, and thus create an indexing. The next step was to attack them with personal messages to alter their political views. The ministry had to withdraw the tender after a PIL was filed in the apex court which challenged this tender on the grounds of privacy violation. Now, the same problem is back and that too on a way bigger scale, because the government is now targeting the youth of the nation, i.e. the citizens responsible for tomorrow of this great nation.
Unlawful Activities (Prevention) Act Crisis
When we look at the present scenario we find that the Right to freedom of Speech and Expression Guaranteed under Article 19 (1) (a) stands endangered by recent amendments to the Unlawful Activities (Prevention) Act, which received the presidential assent in August, 2019. As per this amendment any individual believed by the government to have committed or participated in acts of terrorism, prepared for terrorism, promoted terrorism, or to have been otherwise involved in terrorism, can be declared a terrorist, and put into custody without being charged of any offence. If the surveillance of students is allowed, then the government can put anyone behind bars and this would be a public assassination of our fundamental rights. Other students, who are the youth of this nation shall refrain from freely putting forth their opinion lest they shall be declared terrorists and jailed. This would be a major setback to the spirit of the constitution of India in whole and Right to Freedom of Speech and Expression in specific.
This move to surveillance the student social account activities can be seen as direct attack to the democratic spirit of India. The use of surveillance has not been specified clearly. The peril of such surveillance can be understood from the lines of Raman Jit Singh Chima, Director of Public Policy at global digital rights non-profit Access Now, “If the government departments are collecting and analysing social media data of citizens on a mass scale, it is definitely surveillance. It does not matter if the data being monitored and processed is publicly available. After the K Puttaswamy v. Union of India on privacy, it is fairly clear that even the publicly-available personal data of citizens is protected.”
The alleged directives being issued by the HRD are completely unconstitutional as they would openly flout the rights to privacy, free speech and expression, and also the right to live life with dignity. For development of a vigilant class of citizens, it is necessary that there should be existence of a free social media platform, where the people can express their views without the fear of being prosecuted for it. With the advent of low cost internet and growing popularity of social media, a lot of Indians have joined social media and also carry out a major chunk of their communication on these platforms. Social media if surveillanced would create a police state and India would lose its democratic image, for it shall inherit the characteristics of a totalitarian state. This would lead to the growth of never seen before culture of suppression and would lead to gross violation of rights of citizens. Hence, we the people of India shall take steps at the right time to ensure that this great nation of ours doesn’t fall prey to maligned propaganda.
(2017) 10 SCC 1
AIR 1963 SC 1295
AIR 1954 SC 300
Year I, B.A.LL.B. (Hons.),
National University of Study and Research in Law, Ranchi.
(Image used for representational purpose only.)