In first remarks on the alleged surveillance of phones of Indian rights activists and journalists by operators using Israeli spyware Pegasus via WhatsApp, Justice (retd) B N Srikrishna, who chaired the committee of experts on data protection, said: “I am extremely alarmed. If the reports are true, we may be sliding into an Orwellian State with Big Brother snooping on us, as depicted in the novel 1984.”
Asked what the system should do to ensure that such surveillance does not happen illegally, Justice Srikrishna told The Indian Express: “Generate strong public opinion against what you see as a clear onslaught on democratic and Constitutional rights of citizens.”
The retired Supreme Court judge was appointed by the government on July 31, 2017 to head the committee on data protection when the question of privacy as a fundamental right was still being examined by the top court. The committee of experts and officials held public hearings across the country and submitted a report on July 28, 2018 in which it also proposed a draft data protection law. The Bill is yet to be brought to Parliament for approval.
Since data protection also has implications on what India must do towards surveillance reform, and prevent governments or other entities from being able to snoop on citizens, Justice Srikrishna said: “Ensure that all surveillance is done strictly in accordance with and within the Constitutional parameters laid down in Part III of the Constitution and as interpreted in the Puttaswamy judgment.”
The Puttaswamy judgment refers to the Supreme Court’s August 2017 order in Justice (retd) K S Puttaswamy and Another vs Union Of India and Others by a nine-judge Constitution Bench which unanimously ruled that privacy is a fundamental right.
On whether whistleblower protection can help uncover unconstitutional and illegal acts of surveillance by the State, Justice Srikrishna said: “Any law is only as strong as the will of the persons implementing it. Whistleblower protection must be insisted upon and upheld, particularly when it is directed to uncover wrongs of the State.”