Need law to regulate electronic surveillance

Recently, the Supreme Court in K.S. Puttaswamy v. Union of India, and that too unanimously by a Bench of no less than nine judges, conclusively held that the “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21...”

While doing so, it also recognised “consent” at the core of protecting an individual’s privacy.

However, as is the case with all Fundamental Rights, the SC also recognised that consent may be excepted.

Justice Chandrachud, whose opinion spoke for four of the nine Judges, observed that the government may intervene in an individual’s privacy only for a “legitimate State interest”.

Therefore, in the absence of consent, if installation of cameras in public arenas is pursuant to a legislation which has been enacted for a specific legitimate state interest [as opposed to a vague or overbroad purpose].

Also, it furthers the specific legitimate state interest, only then can it pass constitutional muster.

Under the garb of installing cameras for public safety, the legislation must not allow the use of cameras or the information collected through them, for purposes other than those which are specifically identified by it.

This is because, as Justice Chandrachud puts it, “while legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.”

While consent may be excepted, it can be so excepted only in exceptional circumstances, and for specific purposes which are in furtherance of an identified legitimate state interest.

New technologies have enabled easy and quick identification of subjects for manifold purposes, including criminal investigations. However, we must be wary as inherent in these possibilities is the possibility to unduly target subjects for extraneous purposes through extra-legal processes.

The very nature of video surveillance allows it to thrive sans any physical intrusion into a subject’s life.

And, even with little or no physical intrusion, information that is collected through video surveillance may reveal far more than necessary about a subject. Information that may be thus collected could reveal a subject’s “familial, political, professional, religious and personal associations”.

Such information, when be pieced together with other data collections [the possibility of which can be hardly categorised as futuristic given recent strides in information technology development], could add up to a “partial or virtually complete personality profile” of a target individual, and that too with the individual concerned having no means of controlling its truth and application.

A frequent question that comes up in this context is, “why should I, a law-abiding citizen, be worried about the Government constantly watching me? I have nothing to hide.”

Notwithstanding that any such extraneous employment of video surveillance vitiates many fundamental principles of our constitutional ethos, it also inhibits and discourages the legitimate exercise of legal rights due to the threat of sanction.

The danger of harm to individuals and their rights is directly proportional to the duration of video surveillance and the retention periods of the information collected thereby. The longer the surveillance, the greater the danger. Therefore, while constant video surveillance enables a consistent flow of information, it also could become a tool of misadventure.

As stated in the report of the Group of Experts on Privacy, 2012, chaired by Justice A.P. Shah and submitted to the erstwhile Planning Commission, the use of audio and video recording devices remains unregulated in India. The report, and this observation really captures the problem that exists due to the absence of any law regulating electronic surveillance and protecting privacy, observes, “the lack of established procedure over the use of audio and video recording devices has resulted in the unclear demarcation between police and civic devices, varying standards of device use between organizations, and unclear use and access to recorded information...”

The Supreme Court, in Puttaswamy, also took note of the report, with Justice Kaul quoting its salient observations including the suggestion that: “A framework on the right to privacy in India must include … appropriate protection from unauthorised interception, audio and video surveillance, use of personal identifiers, bodily privacy including DNA as well as physical privacy, which are crucial in establishing a national ethos for privacy protection…” Given this backdrop, the need for a law regulating video surveillance is compelling.

Our lawmakers, in their endeavour of making a law on this subject, and in addition to considering the observations of the Supreme Court in the context of governmental intervention into the individual’s privacy, may also want to consider revisiting criminal procedural laws, to prevent easy and unrestricted access and retrieval of personal information by investigating authorities at the drop of a hat.

Any such mass collection, retention and processing of videographic data/ biometric information is susceptible to abuse. This susceptibility is due to the manifold purposes for which such data/ information can be used. The idea should be to limit the use, as opposed to including more participants. The fundamental problem with providing access, live or otherwise, to RWAs or MTAs is that it allows for a back door delegation of an essential sovereign function [assuming that installation of cameras is for the purpose of maintaining law and order] which ought to be carried out by the government alone, to private, unaccountable and non-State actors.