George Orwell’s novel is almost prophetic about the state of India today as the government moots a proposal for a hub to monitor social media content. A petition challenging it says it is violative of Article 14

~By Venkatasubramanian

There can be nothing wrong if a democratic government, especially one that has completed four years in office, wants to know the pulse of the people on the eve of a general election where the stakes are high. However, assessing public opinion about its performance is complicated when ex-pressed in a myriad ways. The popularity and reach of social media in recent times have heightened this complexity by bringing to the fore issues such as freedom of expression, responsibility of intermediaries and maintenance of public peace. Users of social media have, in their own ways, sharpened the public discourse and brought the government’s omissions and commissions under close scrutiny. It is as if social media sets the pace and mainstream media only follows the agenda set by the former.

Therefore it is not surprising that the centre wants to keep a close watch on social media content. Its objective is laudable insofar as it helps the government to be responsive to people’s concerns and grievances which otherwise may not get sufficient space in mainstream media.

Monitoring of social media content, however, is fraught with concern over the right to privacy as the line separating the public and private domains in social media is a tenuous one. With the recent spectre of social media trolls gaining ascendancy, there is apprehension over whether, by monitoring content, the centre is aiming at manufacturing it to serve its own interests.

The Request for Proposal (RFP), a tender floated recently by the ministry for information and broadcasting, therefore, set alarm bells ringing. The tender is for a software platform capable of collecting and storing information from activities in the digital sphere. Extending to email in addition to social media, the tender aims to track conversations across platforms as well as disseminate content using “predictive analysis” and to mould public perception “in a positive manner for the country, and inculcate nationalist feelings within the masses”.

The RFP was floated to invite bidders who would be responsible for supply, installation, testing and commissioning of software and for the service and support for function, operation and maintenance of a Social Media Communication Hub (SMCH). The RFP, bearing Reference No. BECIL/Social Media/MIB/02/2018-19 and dated April 24, 2018, was modified and amended through addendum/corrigendum on April 28, May 16, May 23 and May 30 subsequently. It was floated by the ministry to select a bidder who would be responsible for the project.

Appendix 8 of the RFP provides a list of “roles and responsibilities of media hub team” as well as qualifications of social media executives in 716 districts across the country.

Soon, a writ petition was filed in the Supreme Court against this tender by Mahua Moitra, a TMC legislator. She alleged that the proposed SMCH was violative of the fundamental rights guaranteed under Articles 14, 19(1)(a) and 21. Her petition contended that the SMCH aimed at creating an advanced surveillance infrastructure through which the government could monitor and cut to size all individuals who critique it via social media. The stated objective of being an analytical tool aiding the ministry to gauge the effectiveness of its social media campaigns was just a smokescreen, it further argued.

The petition was heard by a Supreme Court bench of Chief Justice Dipak Misra and Justices DY Chandrachud and AM Khanwilkar who shared her concern. The next hearing is in August.

Moitra, an ex-investment banker-turned-politician, represents Karimpur constituency in the West Bengal assembly. She has a large social media following. She alleged that the project would not only monitor the social media activities of individuals at a micro level, but would further profile individuals based on their online activities. “The project aims to condition the thought process of individuals and inculcate nationalism,” the petition suggested. The entire mechanism is a brazen attempt to spy/snoop on citizens like her, profile persons critical of the government and cut them to size in order to compel them to toe the government’s line, she further alleged. She claimed that being an opposition politician, she is at greater risk of being targeted through the proposed project.

The petition submitted that the SMCH cannot claim any of the grounds mentioned under Article 19(2) dealing with reasonable restrictions on freedom of expression for its justification. Such restrictions can only be placed in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The stated objective of the SMCH does not fall within any of the permissible grounds, the petition stated.

It also argued that the SMCH was an instance of fundamental rights being restricted via executive action rather than legislation, which has been frowned upon by courts in many cases. A “law” to meet the requirement of Article 19(2) must be an Act of parliament or a state legislature or subordinate legislation under the authority delegated by an Act; no restrictions can be imposed on the fundamental rights guaranteed under Article 19 by executive action, the petition explained.

While the proposed hub enables the government to resort to surveillance, and profiling its citizens through a private entity, it is also violative of an individual’s right to privacy and liberty. This right to privacy was held as a fundamental right by a nine-member Constitution bench of the Supreme Court in the Puttaswamy case.

It creates an infrastructure for government-appointed private parties to snoop on individuals and categorise them through profiling, the petition claimed. The SMCH project contains no checks and balances that can prevent it from being used as a tool to conduct surveillance of individuals and spread disinformation, which violates the fundamental rights to privacy and free speech, the petition contended.

It further stated that the software for this could enable it to collect “digital chatter” among all major social media platforms, which can be used to create a 360-degree view of people “who are creating buzz across various topics”. This kind of 360-degree profiling is an affront to the privacy and dignity of citizens and creates an atmosphere in which the freedoms contained in Article 19 become illusory, the petition cautioned.

The SMCH project, according to the petition, is supposed to generate daily reports about what is trending on social media, and district-level operatives are to send in reports on local sentiment from each of India’s 716 districts. The entire surveillance architecture is to be placed in the hands of private persons employed on a contract basis who will be on the rolls of the service provider who emerges successful in the tender process. The privacy of the citizens is sought to be placed at the mercy of non-State actors, which reeks of manifest arbitrariness, the petition alerted. The data collected is to be stored in a single database, which will include profiling of conversations and individuals without any appropriate law in place for data protection, it warned.

That the aim is to manufacture content is clear from the petition’s claim that the platform to be created will have the ability to create, publish and disseminate content on various social media platforms of the ministry, and district-level operatives will need to conduct “social media publicity”.  There is a clear intent to interfere with the freedom of thought and expression of the citizens through State propaganda, it added.

The petition names the Ministry for Information and Broadcasting (MIB) as the first respondent and Broadcast Engineering Consultants India Limited (BECIL), a PSU under the MIB which bagged the mandate for setting up the SMCH, as the second respondent. On behalf of the MIB, BECIL has invited proposals from eligible bidders/agencies for the SMCH project.

Moitra’s petition cites the Supreme Court’s judgment in Kharak Singh v State of Uttar Pradesh (1964) to stress that the right to free speech cannot be exercised under the constant surveillance of agents of the State as it would reduce the entire country to a jail for those under surveillance. This has been endorsed by the Supreme Court in the recent Puttaswamy judgment.

Although the petition prayed for quashing of the tender in question, the Court is likely to grill the centre during its next hearing on August 3 before taking further action as the date of opening the tender has been fixed for August 20.

The Court, which has sought Attorney General KK Venugopal’s assistance in the matter, observed through Justice Chandrachud: “Tracking and regulating social media contents will transform us into a surveillance state.”