Invasion of Privacy Disguised as Rights?

Govt. Policy | Justice | Privacy
December 21, 2020

Sarada Mahesh

Sarada is a lawyer based out of Bangalore. She works as a legal researcher and aims to make the law more accessible for the average citizen.

On December 2, 2020, the Supreme Court of India issued short but succint judgement- Paramvir Singh Saini v. Baljeet Singh & Ors., it held that investigation bodies like the National Investigation Agency and the Central Bureau of Investigation have to set up CCTV Cameras which would record audio and video footage of interrogations during investigations. In case any human rights violation takes place during this interrogation, the victim has a right to ask for this footage while approaching the National or State Human Rights Commission, Human Rights Court, Superintendent of Police, or any other body that has the power to adjudicate upon these matters.

The Court referred to two important cases in its judgement. In Shri Dilip K Basu versus State of West Bengal (2015) the Court had, in its judgement, asked State Government to consider setting up CCTV cameras in police stations and prisons, to deal with this issue of human rights violations. Independent oversight committees would be formed that would periodically publish reports its observations from these footages. The Court noted that it was “heartening” to see that States had enthusiastically recommended for the setting up of these CCTV footages in their affidavits. The Ministry of Home Affairs in 2018 set up a Central Oversight Body (COB) led by Rina Mitra, the Special Secretary (Internal Security), to look into the setting up of videography at crime scenes and for the video recording of witnesses. This had to be done by administrators of Union Territories, State Governments and Central Agencies. It also re-examined the case of Shahfi Mohammad versus The State of Himachal Pradesh (2018). There, the Court had dealt with the issue of whether videos could be taken of the crime scene or during the time of investigation, in order to further strengthen the evidence process. It is interesting to note that the learned Additional Solicitor General at that time, Mr. A.N.S. Nadkarni, had in his arguments compared the possible benefits of this videography to the benefits of the body worn cameras used by the police in the United States and United Kingdom. The ASG seemed to have forgotten that both jurisdictions had privacy regulations to regulate the usage of this technology. India, however, had just recognized the fundamental right to privacy. A legislation on personal data protection was (and still is) a far away dream. The Court ordered for the setting up of a Committee of Experts to issue a standard operating protocol for the usage of this videography.

The Court in 2020 decided to implead the once enthusiastic Union Territories, State Governments and Central Agencies to get an update on the setting up of the CCTV cameras. To their disappointment, they received vague responses from 14 States including West Bengal, Karnataka, Assam and from Union Territories like Andaman and Nicobar islands. Neither did the responses have the technical details of the CCTV cameras, nor did the COB take steps to form oversight bodies in the States and Union Territories.

After reprimanding the State for its callousness, the Court decided to take matters into its own hands. It ordered for the setting up of the State and District level oversight committee. The committee, unfortunately, only has representations from the Government. And it is only the state level committee that has one special representation for women. Considering the primary objective of this entire effort is to tackle the issue of police torture and custodial deaths, it is important to have representation of women in both committees, civil society members and members from the transgender community. This will allow for an independent and unbiased perspective of the issue. It then dealt with the technicalities of setting up these CCTV cameras – if a camera is not working, then it has to be repaired immediately. Any interrogations taking place during this time of repair must be recorded by the police. It also specified the places where the cameras had to be set up (while also specifically reminding them that the cameras had to be set up OUTSIDE the bathroom and not INSIDE it!)

The European Union guidelines on ‘Processing of personal data through video devices’ recognizes the footage collected to be ‘personal data’. If the footage of the camera covers “even partially, a public space”, the owner of the camera is bound to follow the privacy regulations. The guidelines provide instructions such as setting up of a notice informing people that they are under surveillance. They must also adhere to the principle of data minimisation and purpose limitation. This is another aspect that the judgment fails to deal with – while it gives the time period for which the footage can be stored (18 months), it does not talk about what the authorities with the footage once this time period is over. The guidelines state that the footage must be deleted or destroyed upon the completion of its objective. The Court also does not deal with the problem of misuse of the data. At the risk of being tagged as a fear mongerer, there is a possibility of this data being collected for databases like NATGRID. Hopefully, the Committees will make this one of its objectives keeping in mind the need to protect citizen’s fundamental right to privacy.

The judgement is important from the perspective of human rights violations while in police custody. The 2020 incident of police torture in Sattankulam police served as a harsh reminder of the fact that while we have come a long way from the case of D K Basu case, the situation no better now than it was 20 odd years ago. The judgement is thus important from the point of view of victims who rely heavily on the collection of this video evidence. While the judgement may come with good intentions, it is left to be seen if the police will comply with these directions, and the requests of the victims for the recordings.

In order for a judgement to be whole, it is essential for all aspects to be covered. As discussed, the other important aspect that was missed out on was the privacy angle of this data collection process. The Court cannot solely bear the blame for not dealing with these issues. Laying down guidelines for protecting the privacy of citizens without a structure (the legislation on privacy) might be regarded to be premature and clear case of judicial overreach.

What is interesting, however, is the fact that the Bill in its current form does not have provisions on collection of data through video surveillance. Unless the Parliament decides to include it, the burden will shift to the Courts to interpret this. It is important not just from the point of view of this case. States are starting to introduce facial recognition systems to monitor people’s actions. The airports in Bangalore and Hyderabad for instance, have installed facial recognition systems for the ease of the passenger’s entry. This collection of data, done in furtherance of the Digi Yatra program is nothing short of invasion. Doing it without any legislation regulating it doesn’t help its cause either. One can only hope that the Parliament doesn’t further delay the finalization of the Personal Data Protection Act. Rather than waiting for a case to be filed, heard and have a judgement passed on video surveillance, the Parliament should consider passing provisions for the same.


Preferred Citation: Mahesh, Sarada ”

Author

Sarada Mahesh

Sarada is a lawyer based out of Bangalore. She works as a legal researcher and aims to make the law more accessible for the average citizen.

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