The past month has witnessed several protests across the nation against the central government’s controversial Citizenship Amendment Act. While the protests are a positive sign — indicative of the nation’s united resistance against any attempt which threatens to destroy our secular fabric — the response of the government to quell the protests in any manner whatsoever is deeply worrisome. We have witnessed police brutality against students, labelling of protesters/dissenters as ‘anti-nationals’, and excessive surveillance over areas of protest.
UP Police’s Justification of Surveillance Doesn’t Stand Up to Scrutiny
In what appears to be another attempt towards creating an ‘Orwellian State’, the police forces have started using drones to monitor the areas of protest, with the Uttar Pradesh Police going a step further by conducting an aerial survey of houses in several areas of protest in the state. The UP Police’s justification for the survey is that drones help them ‘track and record’ movements of alleged ‘anti-social’ elements, and capture images of houses where bricks and stones are kept on the terraces.
While surveillance in public places is legal and common in India, the use of drones over private houses, and to track an individual’s movements, violates the privacy law and jurisprudence in India.
The Supreme Court of India, in the celebrated decision of K.S. Puttaswamy v. Union of India, recognised the Right to Privacy as an inalienable fundamental right which can only be reasonably restricted in certain exceptional situations. Privacy, as per the court, was governed by the principle of reasonable expectation, that is, either when an individual by his / her conduct exhibited an actual expectation of privacy, or where the society recognises a space as having a reasonable expectation of privacy. One’s home (which definitely includes a terrace) forms part of physical or spatial privacy, and hence, should not be encroached upon. One may use their terrace for several intimate purposes like sleeping, bathing, chatting — which are intimate activities — and should not be monitored by the State. In fact, as per the law in UP, if a terrace is accessed by women, the owner can claim a right of seclusion (in other words, ‘privacy’) over the same.
Police’s Blatant Disregard for Law & ‘Intent’ to Harass
Second, in India, surveillance has always been individual-specific and not over the public at large. The government can only monitor individuals against whom reasonable grounds of suspicion exist, that is, people with criminal antecedents. Therefore, the State’s monitoring of individuals whom they suspect to be an anti-social elements sans evidence of their past criminal records is a blatant disregard of the law. Sadly, the government is monitoring the movements of protesters who have committed no crime but have only exercised their fundamental right to free speech.
If the last month is any indication, there are chances that footage from the drones may be misused to harass and deter protesters from expressing their dissent.
As per law, the liberty of an individual can never be taken away; it can only be reasonably restricted. However, it seems of late that there has been no restrictions but rather the snatching away of fundamental rights.
(Disclaimer: The above-discussed position of law may change if the Data Protection Bill, 2019 is passed by the Parliament, as the Bill allows the state to obtain personal data of individuals without obtaining their consent for reasonable purposes which includes prevention and detection of unlawful activity. Under the Bill, use of drones to monitor individuals and their homes would arguably be legal on grounds of prevention of unlawful activities.)
(The author is a practicing advocate in New Delhi and is a graduate from National Law University, Jodhpur. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)