In the making of an Orwellian State, due importance must be given to snooping. TheDraft National Encryption Policy which was floated by the Department of Electronics and Information Technology couched in the language of security for information and transaction on cyberspace sought to effectively tread on the privacy of individuals by crafting provisions that would allow the government to read private messages and emails of individuals among many other concerns. Amidst much outrage and furore on social media, the Government thankfully has rolled back its encryption policy. It remains to be seen if the privacy concerns will be adequately addressed when it is tabled again in the public domain.
The policy is however only a tiny dot in the surveillance spectrum of our times. The University Grants Commission released a set of guidelines in April 2015 on “Safety of Students on and off Campuses of Higher Educational Institutions” that recommends student institutions and their hostels to be “secured by a boundary wall of such height that it cannot be scaled over easily” and to further fortify it, a fence of spiralling barbed wires have been recommended atop such high walls. Installation of closed-circuit television cameras everywhere, biometric attendance, periodic parent-teacher meetings and police posts inside campus are some of the more egregious recommendations that have come out of these guidelines.
This panopticon-like architecture geared at surveillance is designed to produce disciplined bodies on the university campus. Foucault, four decades ago, had argued how discipline created ‘docile bodies’ for the modern industrial age. The Panopticon, as the framework of the ultimate disciplinary institution like a military academy or school, would allow for constant observation by an unequal gaze of the authority and the possibility of that observation creates a self-censuring gaze of discipline.
The UGC, it seems is functioning on this idea of a three-tier prison system on campus to be achieved under the gaze of CCTV and biometrics, teachers and police. The tragedy is that the same UGC had set up a task force to recommend guidelines on safety of women on campus, after the 2012 Delhi Gang Rape, which issued some of the most progressive recommendations ever. The Saksham Report released in December 2013 moved away from the language of protectionism and articulated campus safety using a rights-based approach. It warned against excessive securitization on campus and unwarranted policing and restriction on movements of women students on campus.
The carceral politics of the regulatory body of higher education is matched by the increased surveillance on students across university campuses in India that puts Roald Dahl’s much feared school headmistress in Matilda, Miss Trunchbull or J.K. Rowling’s authoritarian and much hated Ministry appointed headmistress at Hogwarts in Harry Potter, Dolores Umbridge, handing out detention to rule defying students to a state of shame. Differential rules, differential timings and differential access for male and female students have predictably incensed many in recent times. Infantilising students and moral policing on campus evoke the same logic from the administration — from Aligarh Muslim University to Scottish Church College in Calcutta to more recently, Sree Sairam Engineering College in Chennai. The reasoning and language of the administration in invoking discriminatory rules for male and female students rest on the notion that the academy is the guardian and the student, especially the female student is the ward. The academic institution in this way seeks to replace the family institution and legitimize snooping. The culture of securitisation, the administration will declare, demands sacrificing privacy at the altar of surveillance.
Using a somewhat similar logic, the Attorney General, in the course of his argument in the Aadhaar case in the Supreme Court stated that collection of biometric data did not amount to an infringement of a right to privacy because, as he contended, there is no fundamental right to privacy under the Indian Constitution. Such assertions become critical at times when the government readies the draft DNA Profiling Bill, with its privacy and accountability concerns stand out as the most intrusive legislation of our times.
While the Supreme Court constitutes a constitutional bench to ponder on this question to settle all doubts that may linger in the mind of government and its law officers let us also remember that this absurd reading of fundamental rights ignores a robust jurisprudence of right to privacy articulated by the Court in the last three decades starting with Gobind v Madhya Pradesh, where the Apex Court noted that rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists.” In the post Maneka Gandhi jurisprudence, ‘personal liberty’ in Article 21 covers a variety of rights. Some have status of fundamental rights and given additional protection under Article 19. The Triple Test for any law interfering with personal liberty is that first, it must prescribe a procedure; second, the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and third, it must withstand test of Article 14. The law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. Maneka Gandhi also noted the inter-relation of rights and the nexus between Article 14 (equality), Article 19 (fundamental freedoms) and Article 21 (life and personal liberty). The Attorney General’s statement that there is no fundamental right to privacy, probably from a plain reading of the Constitution is erroneous on the very face of it since a constitution is much more than its written text. It is instructive to recall B.R Ambedkar here. Ambedkar while defending the four accused in the Chirner Firing Case in 1931 had in his wisdom noted that “the case has assumed peculiar complexion. It has come to be regarded as a case of the people versus the Government. The issue involved is the stability of the Government as against the liberty of the people… I would appeal to the gentlemen on the jury to regard the rights and liberties of the people far more important than the stability of the Government.”
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