[Summary] Because privacy enjoys an abundance of meanings, it is claimed in diverse situations every day by everyone against other people, society, and the state. Traditionally traced to classical liberalism’s public/private divide, there are now several theoretical conceptions of privacy that collaborate and sometimes contend. Indian privacy law is evolving in response to four types of privacy claims: against the press, against state surveillance, for decisional autonomy, and in relation to personal information. The Indian Supreme Court has selectively borrowed competing foreign privacy norms, primarily American, to create an unconvincing pastiche of privacy law in India. These developments are undermined by a lack of theoretical clarity and the continuing tension between individual freedoms and communitarian values.
[Excerpt] The Central Monitoring System (CMS) is an attempt to co-opt the interface between government and the purveyors of communications; because if the state cannot control communications, it cannot control society. It represents the natural culmination of the progression of Indian surveillance. However, in its present state, Indian surveillance law is unable to bear the weight of the CMS project, and must be vastly strengthened to protect privacy and accountability before the state is given direct access to communications.
Abstract: At the end of his latest movie, Superman flings down a surveillance drone. “You can’t control me,” he tells his military minder. This exchange goes to the crux of surveillance: control. Surveillance is the means by which nation-states exercise control over people. The USA and other western democracies have installed a comprehensive apparatus of surveillance, but these are accompanied by strong privacy laws and sophisticated criminal procedure. India seeks to replicate this without privacy laws, a reliable criminal justice system, or even technical know-how. For ordinary Indians whose privacy is besieged from abroad and within, the law offers no solace.
Abstract: The Central Monitoring System (CMS) is a project to automate wiretaps in India, which are currently conducted by private carriers. It is being undertaken without first resolving the potential invalidity of its parent statute. India’s wiretaps regime is set out in section 5(2) of the Telegraph Act and rule 419A of the Telegraph Rules. In 1996, in the first constitutional challenge to wiretaps, the Supreme Court found the wiretap provisions too invasive and prescribed fresh procedure. In 1968, the Law Commission noted that the wiretap provisions may be unconstitutional. While surveillance is a legitimate national function, it must be conducted within the law and with sufficient protection for privacy. Projects like the CMS usher a techno-utopian dream of PRISM-style mass surveillance without the actual ability to safely conduct it.