Table of Contents
Introduction
The use of closed-circuit television (hereafter CCTV) has increased substantially in the past decade. Undoubtedly, law enforcement through video surveillance or CCTVs is the new norm. CCTVs are also becoming cheaper with the increasing market. Even small businesses are finding it financially feasible to use CCTVs for safety purposes. However, there has also been an increase in the number of privacy violations committed through the medium of CCTVs. Many incidents of CCTVs cameras, installed in the changing rooms or cabins of employees, violating the privacy rights of individuals have come to light in the recent past. Human rights groups have constantly highlighted the privacy problems associated with the use of CCTV Cameras. Policymakers and lawmakers are also beginning to take cognizance of these concerns and are coming up with various legislations to protect the privacy of their citizens.
Importance of Right to Privacy
There are several advantages of the right to privacy. It protects people from spying by the government. The right to privacy is essential to enable people to fully exercise their right to freedom of speech and expression. People cannot speak freely if they are under constant surveillance. It is this very important right that prevents the misuse and exploitation of the personal data of the general public and gives people control over their data. In today’s technology-driven world, the right to privacy has become even more important. It prevents the intrusion or interference of private companies into the personal lives of the people. The right to privacy prevents private companies from storing and exploiting the user’s data without their consent. It can be said that the right to privacy is certainly one of the most important and celebrated fundamental rights guaranteed by our Constitution.
Puttaswamy Judgment
In the landmark judgment of Justice Puttuswamy & Another v. Union of India & Others[i], the Supreme Court laid down the constitutional validity of the installation of CCTV cameras by the government or public authorities. Any installation of a CCTV camera must be backed by legislation or should have a statutory law upholding its validity, it should be necessary for the attainment of a legitimate state objective and it should be reasonably proportional to the legitimate objective to be achieved. It was in this landmark judgment that the Supreme Court had held the right to privacy to be a fundamental right protected under Article 21 of the Indian Constitution.
The nine-judge bench of the Supreme Court also held that the right to privacy is a fundamental right under Part III of the Indian Constitution.[ii] However, the judgment provided that the right to privacy is subjected to reasonable restriction. This point provides the scope for reasonable use of CCTVs by law enforcement agencies. The judgment also over-ruled the decisions given in MP Sharma v. Satish Chandra and Kharak Singh v. the State of U.P.[iii] where the court had held that the right to privacy was not granted by the Constitution as the framers of the Constitution found it fit not to mention the right to privacy explicitly as a fundamental right. Thus, the Supreme Court has also paved for such future judgments by various other courts where the right to privacy might be upheld. This will certainly have implications for the use of CCTVs.
Regulations relating to the use of CCTVs
Even though section 66E of the Information Technology Act, 2000 provides for a legal remedy in case of misuse of CCTV, not a single prosecution has been reported under this Act till now. The IT Act and the SPDI rules provide that the use of CCTVs must be lawful. However, they do not provide any list of purposes for which the CCTVs may be used.[iv] Section 67 of the Information Technology Act provides punishment for recording or collecting obscene electronic material through CCTV. The Data Protection Act is also largely silent regarding the use of CCTVs. There is certainly a lack of regulations and guidelines regarding the use of CCTVs in India.
Justice A.P. Shah Committee
The Planning Commission of India constituted a Group of Experts under the Chairmanship of former Chief Justice of Delhi, Justice A.P. Shah. The group of experts held several meetings to deliberate on the issue of privacy. Several guidelines were laid down by the A.P. Shah Committee. The committee reported that in several cases people are not even informed of the presence of CCTV cameras around them and it is also unclear as to what happens to the recorded footage. To address these issues the committee provided the following recommendations:
- The persons using surveillance devices must be held accountable to a regulatory body in case of misuse of the recorded footage.
- The recorded footage must be secured to prevent any misuse.
- Information should be collected only for certain reasonable and exceptional purposes.
- The person who is being recorded must be notified about the surveillance.
- The collected data should not be disclosed to a third party without the consent of the person whose data is collected.
CCTV in Private Property
In India, no permission is needed for the installation of CCTVs on private property. In some instances, the police officers themselves insist on the installation of CCTVs for security and safety purposes.
The courts have also passed several judgments regarding the installation of CCTV on private property. The Bombay High Court has declared that installing a CCTV camera outside an apartment would amount to a violation of the right to privacy if done without the consent of the residents of the apartment. Such an installation of CCTV was held to be illegal by the Bombay High Court.
Recently, the Delhi High Court, in response to a PIL, asked the Central Government to consider the installation of CCTVs in the kitchen of all the restaurants. This clearly shows that the courts are in favour of the use of CCTVs for the greater public good.
CCTV Cameras in Schools and Prisons
Recently, the Delhi Government, in the wake of the murder of a 7-year-old child in Ryan International School and the rape of a 5-year-old at a Delhi School, had given orders for the installation of CCTV Cameras in the classrooms as well as the practical labs of all the government schools. The reasoning given by the Delhi Government behind this decision was that it will enable the parents to ensure the safety of their children by keeping a watch over their children through CCTV footage on a real-time basis. This decision of the Delhi Government to install 1.5 lakh cameras in schools was challenged before the Delhi High Court. The petitioner pleaded that the presence of cameras in classrooms violates the right to privacy of children and there should be an equilibrium between safety and the right to privacy. However, the Delhi High Court held that there was nothing private in classrooms and hence no question of privacy arises. When public interest litigation was filed in the Supreme Court against the Delhi Government’s decision, the Supreme Court too refused to stay the government’s decision.
The Supreme Court in the case of D.K. Basu v. State of West Bengal and Others [v] ordered the states to install CCTV cameras in all the prisons within their respective states. The Supreme Court also recommended the installation of CCTVs in all the police stations. The Supreme Court also said that an oversight mechanism needs to be set up in all the states and an independent committee should study and publish reports regarding the CCTV footage. Even though the judgment aimed to prevent custodial torture and subsequent deaths, but this also leads to the violation of the privacy of prisoners. The judgment also fails to provide any guidelines regarding the use of footage collected through the CCTVs. The installation of CCTVs in places such as the prison cells certainly leads to a violation of privacy.
Conclusion
The biggest problem regarding the installation of CCTVs in India is the lack of regulatory bodies and guidelines. There is an urgent need to draft specific legislation governing the use of CCTVs. The law must change or modify itself with the changing times. It is beyond doubt that CCTVs can be extremely helpful for the law enforcement agencies but for that the public’s confidence in the use of CCTVs must be build and that can happen only when specific statutory provisions are dealing with the use of CCTVs. CCTVs are meant to protect people, their families, and loved ones, and their hard-earned money. The presence of CCTVs in public places puts fear in the minds of criminals and acts as a deterrent against crime. The government will also find it challenging to deal with the use of CCTVs on private property.
A legislative draft fixing the extent of liability in case of leakage of sensitive footage or footage of a person without his or her consent must be made. The law must also fix how long can CCTV footage be stored on the servers and who shall be held liable if it is not deleted after the expiry of the specified period. The enactment of specific legislation will also pave the way for further judicial scrutiny regarding the use of CCTVs.
REFERENCES
- [i] 2017 SCC OnLine SC 996
- [ii] India: Supreme Court Declares Right To Privacy A Fundamental Right
- https://www.mondaq.com/india/privacy-protection/625192/supreme-court-declares-right-to-privacy-a-fundamental-right#
- [iii] https://indiankanoon.org/doc/1306519/
- [iv] https://iclg.com/practice-areas/data-protection-laws-and-regulations/india
- [v] (2015) 8 SCC 744
This article is authored by Gautam Badlani, student at Chanakya National Law University.
