‘Flagrant disregard for personal liberties’

Interview with Mahua Moitra, who has challenged in court the government’s move to monitor online data.

Mahua Moitra.

Mahua Moitra, the Trinamool Congress legislator from Karimpur in West Bengal’s Nadia district, was the first to challenge in a court of law the Bharatiya Janata Party (BJP) government’s controversial move to float a tender to set up a social media communication hub (SMCH) for monitoring online data. The furore over it forced the Centre to scrap that proposal, only to resurrect it in another form through another agency. Mahua Moitra once again challenged the move. In an exclusive interview with Frontline , the investment banker-turned-politician speaks about her cases, the recent order by the Union Home Ministry and the Centre’s motives behind its apparent disregard for the personal liberties of citizens. “This government needs to realise that it is accountable to us, not the other way round,” she said. Excerpts:

Were you surprised that the Home Ministry came out with this order suddenly despite the Supreme Court recognising the right to privacy as a fundamental right and despite the fact that a case filed by you is on in the apex court?

Nothing that this government does is sudden or unplanned or spontaneous. Everything they do is part of a larger design. You can also see that with Aadhaar. The Supreme Court had said very clearly that you cannot make Aadhaar mandatory for social services until there was a ruling on it because we do not want people dying, we don’t want people being denied rations. In spite of that, the Centre was in flagrant violation. They were sending notices to State governments; they were putting up things in the public domain which insisted that you need Aadhaar.

The attitude of this government has always been “let us get away with as much as we can”. The attitude is not “let us try and live by the letter and spirit of the law”. For this government, the spirit of the law is inconsequential. There is total disregard not only for the law but also things like fundamental rights, things like privacy. These are alien concepts to the government.

The citizens are constantly being faced with a binary choice, like in the case of Aadhaar linkage to banks, “either do this or face the consequences”. There is always the sword of Damocles over their heads. The Centre brought in bank linkage via the Prevention of Money-laundering Act [PMLA], which it passed in Parliament as a Money Bill and didn’t require voting in the Upper House, completely via the back door. The PMLA assumes that all of us are money launderers until proven otherwise. We don’t have reverse onus in this country for any law apart from the NDPS [Narcotic Drugs and Psychotropic Substances Act].

I went to court on that, and it was pleaded along with the other Aadhaar petitions. First there was the Justice K.S. Puttaswamy judgment, which said the right to privacy is a fundamental right. When the BJP government had a chance to accept it with grace, it stood up in court and tried to argue that the right to privacy is not a fundamental right. Which government in this day and age does that? They argued and they lost. But even now people are having so many problems relating to the Aadhaar card. In [West] Bengal, we got a notification from the Centre that for Central government PDS [public distribution system] we still need Aadhaar. Nothing stops them.

What made you decide to challenge the proposed SMCH?

In April this year, the Information and Broadcasting [I&B] Ministry floated a secret tender through BECIL [Broadcast Engineering Consultants India Ltd, a Central public sector enterprise under the I&B Ministry] for an SMCH. So, that means all of our social media accounts—be it Facebook or email—would be given to a private agency per district, and private employees would have access to Them. The Centre said it wanted feedback on its social welfare programmes. You can get an app for that! You do not need to read our private emails to know our views on certain matters.

Everyone is affected here. India is a country where we have access to technology, but not everyone is aware of the ramifications of using that technology. Grandparents use Facebook to remain in touch with their grandchildren. When a government comes out with a tender like that, the vast majority of the people who will be affected will not even be aware of such a thing taking place. If you have read the tender [details], you will realise how ridiculous it is. How could it even pass the legal department of the I&B Ministry, I wonder. So I went to court on that, and Abhishek Singhvi represented me.

The first day it came up, Justice [D.Y.] Chandrachud read the plaint and said this was a “surveillance state”. He used that very term in an open court. Obviously, after that there was a huge furore. But this is where you see the Machiavellian nature of this government. Two weeks later, when the hearing came up again in court—this time I was not present as I was in Assam—the Attorney General said that the Centre was withdrawing the tender. So everybody thought they had realised their mistake. But guess what! While saying they were withdrawing that tender, they fixed a few of the loopholes, changed some of the words, and floated the exact same tender through another agency, the Unique Identification Authority of India [UIDAI]. The very day they were saying they were revoking the first tender, they were opening the technical bids for the second tender. Talk about mal-intent! Again the same disregard. Their attitude is we’ll keep doing it, let’s see where they stop [challenging us].

I filed a fresh writ with regard to the second tender. The Attorney General said: “We are willing to incorporate whatever their fears are into our new tender. Please file an affidavit.” So we filed a rejoinder, where we made it clear that it is not a question of what we want you to incorporate. You simply cannot look into emails or social media accounts. Period. We want it scrapped. When it came up in court again, the Chief Justice had changed. It had now come up in Justice [Ranjan] Gogoi’s court; he told me to file another affidavit to explain why we thought that the Centre was trying to bring in state surveillance. We have already filed it and it will be coming up for listing any day.

And then this notification…

Now, with the election coming, the BJP has realised that it has to find some way to look into our stuff. If the government wants to harass you, they have innumerable ways to do it. So they have come up with this notification which is valid in law, signed by Rajiv Gauba [Union Home Secretary]. They have filed it under 69 (1) of the Information Technology Act, which, in the light of the judgment, is probably unconstitutional anyway. This is what we are looking at now. They have empowered 10 agencies. Tell me, how is national security linked to the Central Board of Direct Taxes? Two years ago, they came up with demonetisation, and we were the only ones who stood up and said this was wrong. But at that time they were invincible. There is a saying, “The arc of the moral universe is long, but it bends towards justice.”

What do you have to say about the government’s justification that this is for national security and the safety of its people?

If this government feels that it requires to snoop into my private emails and social media accounts for my own security, then I would rather look after my own safety, thank you very much. Because this government, as we have seen, has nothing but flagrant disregard for all personal liberties, freedom, and is trying to make India into this homogeneous mass that adheres only to their principles and their version of life.

Was going to court your own idea or your party’s?

I am not doing this as a political person. I have filed this in my personal capacity; it has nothing to do with my party. This is something I feel strongly about as an Indian citizen. This is our country, and we have to live in it as free citizens. This is the greatest democracy of the world. People look up to us, and after 70 years of freedom are we going to need some rabble-rousers and hatemongers to come and tell us what we should eat and who we should email? They have not understood the basic spirit of the Constitution. Being in public life, we see how these moves by the Centre restricting freedom affect the common people. Law-abiding citizens are being kept in a constant state of panic: “If I don’t link my Aadhaar, they will disconnect my phone or freeze my bank account or some disaster or the other.” Why keep people in this constant state of fear? The greatest threat to democracy is fear. I felt it was very important to challenge them, and we are going to win. There is no question about it.

What will be your next step?

I am most definitely going to go to court on this. But this is not my fight alone. Everyone needs to wake up. This government needs to realise that it is accountable to us, and not the other way round. We are supposed to watch over their actions. We keep them in balance; they are not here to keep us in check.