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Civil Rights and the Right to Information

by

Sharad Bailur

The entire issue of civil liberties in liberal democracies has rested on the premise that, given the chance, the state will exercise unlimited power over its citizens. The edifice of civil liberties is therefore built around a "contract" between the state and its citizens by which the state is bound down and prevented from exercising unlimited power over individual citizens in a manner described by some sort of written code - the Magna Carta or the Bill of Rights or Fundamental Rights, call it what you will. The point to be noted here is that the power of the state is limited by the code. The code, in offering "civil rights" to citizens, in fact offers only freedoms resulting from the non-exercise of state power. All such freedoms are therefore negative in nature. They prevent something from happening; that something being the exercise of power.

Take the Fundamental Rights in our own Constitution:

The right to the freedom of movement ensures that the state will not place restric tions on the movement of its citizens except in certain specific circumstances dic tated by national security. The right to the freedom of opinion and expression en sures that the state cannot stop individuals from holding opinions or of expressing them subject of course to certain restrictions. The right to the freedom of religion ensures that the citizen is free to practice, profess and propagate any religion, subject to the dictates of public order. The state does not have the power to make a citizen follow particular religious precepts. The right to Constitutional Remedies ensures that if the state infringes upon any of these rights, the citizen can sue the state for the restitution of his rights. In other words the state is deprived of not just some of its powers. Any attempt to regain those powers by virtue of its strength as a state against individual citizens is negated by the right to constitutional reme dies. This right ensures that the other rights are respected. And since it is a part of the constitution it also ensures that all the Fundamental Rights are inherently jus ticiable. This entire edifice of civil liberties can be negated if just the last right to constitutional remedies is removed from the Constitution. Its presence in the Indian Constitution therefore makes for the liberal democratic framework under which the nation functions.

Even the American right to bear arms does not give away guns gratis. In much the same way the right to privacy does not make it obligatory for the government to provide you with privacy. If this negative aspect of civil liberties is taken as a basic premise it means that the right to information which the press in general claims, is merely that of the press not being prevented from gathering information. The right to information does not and cannot be seen to be a means to compel someone, even the Government, to part with information. This new aberration, presently to be seen thankfully only in the US, has not yet taken root in other countries.

The issue that arose in the Princess Diana case is the nice question of whether the right to privacy of a person can be pushed aside to ensure the right of the press to gather information. It is clear that there is a conflict of rights here. In this conflict it is often forgotten that civil rights are rights given under the code of the country to individual citizens. The right to the freedom of the press or the right to information is the right given to individuals to print and publish as they choose and to gather whatever they can by way of information to do so. In this particular instance however it is the individual pitted against the juggernaut of the entire newspaper industry. Individual newspapers and magazines compete for market share and often use such pictures to pep up their circulations. In a word the key word is Money.

The point at issue is that the covenant signed between the state and its citizens called the Constitution is between the state as a handy if mythical entity and indi vidual citizens or their representatives. It is not a covenant signed between one mythical entity, the state and another, the information gathering and dissemination agency. This is because any such agency consists of individual citizens. Since any covenant signed with individual citizens is anterior to any subsequent under standing reached with organisations of citizens, the right to privacy has by defini tion to be anterior to and more important than the right to gather information. Conflicts arise when the rights of individuals come up against the interests of or ganisations. Inevitably since organisations command greater clout in terms of men, money and muscle it is the individual that suffers. It is to prevent this that the rights of individuals are treated with greater respect than the rights of organisa tions any where in a liberal democratic set up.

There is however serious debate particularly in the American media about the need to "protect" the rights of the press, even against the rights of the individual. American politics is a mine field of conflicting interest groups in which the rights of individuals often find themselves orphaned. The right to bear arms for example has been appropriated by the National Rifle Association and extremist organisa tions like the John Birch Society and the Ku Klux Klan, who claim that it includes the right to own modern automatic weapons and the equipment for mass destruc tion, including anti-tank missiles. It is therefore impossible under American condi tions to imagine a completely disarmed population which would obviate mass vio lence among citizens. The individual citizen's right to life can therefore be violated and often is, with impunity. To its credit however the law and order machinery does all it can to prevent violence and to catch culprits. But the logic of allowing people to hold arms as a matter of right and then to try to prevent crime committed with those very guns is about as obscure as the logic of keeping a convict on death row healthy in order to be able to properly send him to his death. Of course this happens only in America. Other democracies take the disarming of their population more seriously.

Recent trends in the technology of information gathering however show that pri vacy is becoming increasingly fragile and brittle. Much of this is due to the changes occurring in the way we spend money, the way we buy goods and serv ices, the way we contact other people and the way we in fact live.

Living in India and merely having your name and address in a telephone directory is enough to make you a target of junk mail often involving anything from the purchase of underwear to cars and even international travel. Having a presence on the internet makes you a target for the world.

Owning a credit card ensures that you leave a trail of money spent in various places. This can be collated and a complete picture of your spending habits can be created. A driver's licence, a ration card, a gas connection, a registration of a car, motorcycle or scooter, the payment of electricity bills and water bills, the payment of rent, a bank account, a company fixed deposit, even a visit to a dentist or treatment at a hospital or by a doctor can be used to collate information about a person. Information which is useful from the point of view of those who need it to make the person do what they want. Or for that matter to deprive him of certain facilities which he would have got had that information remained private.

For instance, it is perfectly possible that the Life Insurance Corporation will in future get information about an individual's DNA. That the information so gained will be used to determine if a prospective insurer even at the young age of twenty- one, is likely to suffer from inherited diseases in future. These could range from cancer to diabetes or even high blood pressure. If this can be determined the premiums that he will have to pay will be upped accordingly.

In essence today's information gathering techniques violate your privacy. And you may not even know it. Unfortunately there is no control over the gathering of such information. For example I recently received a card on my birthday from a well known saree shop in Bombay. Not being a woman I don't wear sarees. But more important I have never even visited the shop in my life. Worse I don't even live in Bombay. Commercial transaction in India at an individual level are thankfully still in the stage largely of cash. Plastic and electronic money is yet to make major headway. But the moment plastic and electronic money occupies a major part of commerce, the ability of those who would like to spy on individuals both in the private sector and in the government will have increased exponentially.

If disparate agencies involved in commerce are so successful in gathering infor mation from various sources about citizens the value of such information will not be lost on the organs of the state for very long. As the techniques get refined in the private sector they will increasingly be adopted by the government to keep tabs on its citizens without the citizens ever knowing that the government is spying on them. The recent telephone tapping scandal is just the smallest tip of the smallest iceberg.

The laws in India do not protect privacy with the same zeal that they do for example in the US. As a result telephone tapping is a common if better known means by which the Government keeps tabs on its citizens. As the Government's information gathering machinery is increasingly computerised it will become possible for it to store information on each and every citizen without difficulty even if there are more than a billion of them. The move towards a voter identity card should be seen in this perspective, even if otherwise it makes great good sense. As should the insistence on a ration card, even if you never buy rations.

With the increasing ability to probe the lives of its citizens the state surreptitiously acquires the ability to influence those lives and make the citizen do what it wishes. In other words it begins to acquire powers which it is expressly prohibited from having under the Constitution. This amounts to the insidious technological subversion of the Constitution. Given the ability and the willingness of the state, its organs or even those whom we place in power, of abusing that power, this is a dangerous situation developing of which we are not even dimly aware. It is a situation that needs to be addressed in detail and dealt with before technology overtakes and overwhelms any changes to protect the individual against the state.