Editorial

Depleting scarce natural resources and near extinction of endangered species are the causes of concern for the mankind. Some of us go on a great deal to highlight the imminent danger to the earth and talk about how best to manage and salvage this natural resources and species. In the midst of all these, not much attention has been given to one silently vanishing specie; Privacy. Not much is discussed about this vanishing commodity; the very notion of privacy. At every possible chance, there is a serious intrusion on the privacy of mankind; a concept so widely respected and zealously guarded till date. No chances are spared, to make inroads into the private life of a person, in the name of law or commerce or the information blitzkrieg. The commerce and the government have spared no efforts to take away from us one of our most precious jewel. Either the big brother; the Government is closely watching our every action through PAN, MIN, UIN, DIN and what not or, the mother of all; the commerce is closely monitoring our every move through telemarketing, web tracking and internet and junk mails. We have entered in to a Zero Privacy Zone.

Stop and look around you. What do you see? Cameras and scanners and mammoth databases of a reach that defies human comprehension and defiles human dignity. Marketers can follow every aspect of our lives, from the first phone call we make in the morning to the time our security systems say we have left our houses, to the video camera at the toll booth and the charge slip we get at lunch. Go on-line, and every transaction, every hit, is tracked and recorded by so-called info media. Selling of private information has been the leading business of present times. Collecting and storing private information has reached to a manic level and the governments, all over world are the biggest collectors; gathering information in the name of law for the so called public good. We all are now involuntary members of the surveillance society. This is the beginning of something troubling; the naked republic.

We all need to contemplate whether is this a place we want to live in? There is no reason to hope that the cherished notion of privacy has a ghost of a chance against the forces arrayed against it – overzealous national and international law-enforcement bodies, marketeers and corporations and the banking and insurance companies and the new managed-care conglomerates and the million tentacles of every enmeshed corporate and governmental concern. The people who want to maintain order, the people who want to squeeze every penny they can out of you – forces of order and the forces of commence: a formidable alliance is out to grab our privacy and we are up against such forces. It is a pitched, yet terribly one-sided; battle.

A man’s home is his castle and the state was the first to respect his right to treat his home as a castle; not any more. There is now a constitutional acceptance of the power of the state to enter your house or business premises for the purposes of investigation and unearthing the assumed hidden evidence. One can trace the acceptance of this power of state to the hieroglyphs in Egypt dating back to four thousand years and in the Arthshashtra of Chankya dating back to about two thousand years. Such powers were accepted as a necessary evil to serve the larger objectives of those who were governed. Powers were vested in the highest authorities known for their discretion who with their wisdom ensured that such powers were sparingly used against the most errant offender; the safeguards which provided the foundation for judicial acceptance of the powers to invade the privacy. Unfortunately this very foundation is shaken in the recent times in the name of law.

An Income Tax authority enjoys the power to search the premises of a citizen which requires to be exercised with great discretion by high ranking officers only after receipt of information, formation of an opinion, recording of the reasons and issue of a search warrant. Contrast this with the power to conduct survey of business premises with a limited objective of verifying the cash, stock, valuables and books of account where no such safety net is provided for citizens. A power to survey becomes more lethal and dreaded as no safeguards similar to search are put in place. There had been a good number of cases wherein the authorities conducting survey had transgressed their powers, with alarming regularity. In one of the cases of violation, the Calcutta High Court in Dr. Vijay Pahwah, 129 CTR 64, observed as follows :–

"The officers conducted a survey. Clothed with the large powers given to them by the Income Tax Act as amended up to date, they started acting in a manner people do in autocratic countries where there is no check on petty Government officials ……. The Income Tax Officers and authorities do not have any power to interrupt the ordinary peaceful citizens of the country in any manner they like by utilizing the large powers given to them, without keeping strictly within the four corners of those large powers. Since the powers vested are large, even a millimetre of departure therefrom must be immediately shorn off by the impartial courts of law, if this country is to continue to remain a free one. In the instant case, there has not been merely one millimetre of departure but of several kilometres from within the permitted powers……"

The powers are now so wide and safeguards for the citizen are so totally non existent, that the powers are capable of being used for extraneous reasons as was feared by eminent jurist

Mr. Nani Palkhivala. It appears that the legislature has not been made aware of the serious inroads in the rights of the citizens occasioned by the sleight of the hands of the authorities practising it. Though late it is time proper for the legislature to take remedial action before it is too late.

Sincere gratitude is expressed for the authors of the Special Story on "Survey under Direct Taxes" printed in this volume for their support and timely contribution.