GUJARAT Chief Minister Narendra Modi faces two contradictory trends. In the elections to three state assemblies, Rajasthan, Madhya Pradesh and Chhattisgarh, his party, the Bharatiya Janata Party made an impressive showing.

In Delhi, it came within striking distance of acquiring a majority. As against this, one skeleton after another keeps tumbling out of his closet. Two fake encounter cases were followed by the recent exposure of a snooping scandal.

On Nov 15, two news portals released a set of transcripts of audio tapes which revealed an outrageous surveillance of a 35-year-old woman architect and a district collector, Pradeep Sharma, known to her, by a senior police officer G. L. Singhal at the behest of the then minister of state for home, Amit Shah, who has resigned having come under a cloud. Last April, Singhal gave the tapes, recording some 267 phone conversations between him and Shah, to the Central Bureau of Investigation.

Now the fat was in the fire. Four days later, Sharma, now under suspension from service, as was Singhal himself, brought the matter to the Supreme Court’s notice challenging his suspension.

Modi has reasons to worry. Amit Shah was and still is notoriously his confidante. Modi uses him even now as a trusted aide. And throughout the tapes Amit Shah kept on repeating a “sahib’s” interest in the matter.

Modi’s silence is deafening. But the BJP’s defence that the surveillance was meant for the hapless woman’s “protection” blew up once the tapes went viral. In one, Amit Shah orders Singhal to make sure that she did not “escape”. A report from Ahmedabad and Delhi on Dec 14, refers to “accusations that Mr Shah used intelligence officers to spy on a woman with whom Mr Modi was apparently besotted”.

This case will proceed on its own course but it raises disturbing questions about the power of the state freely and secretly to violate the privacy of the citizen unless and until an aggrieved officer spills the beans. In this case, it was spread over a year.

The law provides no mechanism for its prevention of violation of privacy. Redress comes, if at all, only after the actual occurrence and then only if the citizen comes to know of it by sheer accident. Of what avail the constitutional guarantee of the right to privacy if its breach can proceed freely as it did in this case? The Constitution of Pakistan explicitly recognises the fundamental right to privacy in Article 14(i): “The dignity of man and, subject to law, the privacy of home, shall be inviolable”.

The right cannot be confined to the home; for “the dignity of man” is rendered meaningless unless his privacy, whether at home or outside, is respected. Also, on any fair interpretation the law must be regulatory of the exercise of the right; not destructive of it.

In contrast, the Indian constitution contains no explicit recognition of the right. But over the years the Supreme Court of India recognised and developed a right to privacy from a fundamental right embodied in Article 21: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The court accepted that “personal liberty” includes the right to privacy to the point that it renders even telephone-tapping — let alone surveillance — illegal unless it is sanctioned by law. But that law, in turn, must conform to other fundamental rights as well; such as the right to freedom of speech and expression.

So far so good. But what about a mechanism to ensure prevention of the violation? Lord Denning’s report on the Profumo affair has an entire chapter on the role of the security services. “Their operations are to be used for one purpose, and one purpose only, the defence of the realm. They are not to be used so as to pry into any man’s private conduct, or business affairs; or even into his political opinions, except insofar as they are subversive, that is, they would contemplate the overthrow of the government by unlawful means.”

This will not suffice. Legislation is called for to forbid violation of privacy except by an order of the court; rather like search warrants issued by magistrates under the Criminal Procedure Code. In this case, an order by a judge of the sessions court, if not, the high court, should be mandatory. The law must make illegal violations of privacy a criminal offence for which orders by a superior should be no defence.

Lastly, The British Regulation of Investigatory Powers Act, 2000 is a good model to draw upon. An independent ‘interception of communication commissioner’, always a retired judge, supervises the system and submits an annual report to parliament. A tribunal adjudicates on complaints by citizens.

The writer is an author and a lawyer based in Mumbai.