Why Am I Under CCTV Surveillance?

By Priti Singh and Gaurav Kumar

 

 

Introduction

We often come across signs indicating “You are under CCTV surveillance” and we have accepted it as a new normal. The easy availability and affordability of CCTV cameras has extended its use from public places to individual apartments and buildings. More often, the people under surveillance are not even aware of the eyes watching them. With the mushrooming video surveillance in the country it becomes pertinent to ask “why am I being watched?” This articles tries to dig out the existing legal framework which authorizes the use of CCTV cameras, both, by the government and the private individuals, taking into consideration the potential threat to privacy that might be posed to the nation.

Video Surveillance – the new normal

Maintaining law and order in the country has always been the utmost priority and to further this motive, many states have made it compulsory[1] to have CCTV cameras installed in public places or are planning to do so closely in future.[2] However, there is no dedicated central law or guidelines, for that matter, to govern video surveillance in India.

The privacy concerns related to video surveillance through CCTV cameras are multifaceted and its functioning and the stakeholders play a key role here. The video footage is captured through array of CCTV cameras installed which is subsequently transported securely to a secure storage.[3] In between this process, the data is monitored to allow restricted access. This process involves four major stakeholders, the owner who is responsible for the video surveillance, the operator company which operates the entire surveillance system, people who are under surveillance and the government which regulates and monitors the entire system via legislation and guidelines. This elaborate scheme of video surveillance has a potential of being abused at many levels in absence of any privacy safeguards.

Amid this regulatory void regarding video surveillance, the states have started enacting laws or amending the existing law in order which merely pave the way for video surveillance. For instance, The Karnataka Public Safety (Measures) Enforcement Act, 2017[4] and Andhra Pradesh Public Safety Act, 2013[5] make it mandatory for crowded places to provide for public safety measures which primarily includes Closed Circuit Television Surveillance (i.e. CCTV Surveillance).[6] Both the Acts sets out the objective as tracking and detecting crimes and other criminal activities, side-lining any concerns pertaining to data protection or privacy of individuals.

Existing legislative framework

The legal concerns related to the CCTV and its misuse are mostly seen through the lens of right to privacy. The right to privacy in India can broadly be said to governed by the K.S. Puttaswamy v. Union of India[7] case (“Privacy Judgement) and partially by the Information Technology Act, 2000 (hereinafter “IT Act”). However, they only safeguard the use of one’s personal information or sensitive visuals of private or sexual nature[8] respectively. The Data Protection legislation is also in pipeline but that does not deal with issues arising out of video surveillance either, with suggestion of exemption for residential CCTV cameras from the purview of a data protection law.[9]

The IT Act is considered as parent legislation while dealing with video surveillance and has only one section directly dealing with it. Section 66(E) of the IT Act, 2000 makes violation of privacy of any person by way of capturing, publishing or transmitting the image of a private area of the person punishable. This is also punishable under section 354(C) of Indian Penal Code, 1860.

Section 69 of IT Act, 2000 & Rule 3 of Information Technology (Procedure & Safeguards for Interception, Monitoring & Decryption of Information) Rules, 2011 prohibits interception, monitoring or decryption of any information stored in any computer resource unless issued by the Secretary in the Ministry of Home Affairs for only specified purposes mentioned in the section. Furthermore, the Information Technology (Reasonable Security Practices and Procedure and Sensitive Data or Information) Rules, 2011, enacted by the virtue of power vested under section 87 r/w section 43(A) of IT Act, 2000, has rules regarding sensitive personal data or information which are applicable to the body corporate or any person located within India[10], and mandates the use of guidelines specified therein while handling sensitive data or information.

The Delhi government vide Delhi Rules for Regulation of CCTV Camera Systems in NCT of Delhi, 2018 did try to make law for safeguarding the privacy of individual from video surveillance but failed to govern rampant use of CCTV surveillance by private individuals in the private property and handed excess power to the executive. Despite taking one step forward, the government took two step back when in 2018 it allowed[11] ten intelligence and investigating agencies and the Delhi Police to intercept, monitor and decrypt ‘any information’ generated, transmitted, received or stored in any computer.

Thus, it is clear that although the governments tried to make rules and regulations they failed to cover every aspect of CCTV surveillance in public space and do not cover any aspect of private CCTV surveillance at all.

In September 2011, the planning commission of India formed a Group of Experts under the chairmanship of Justice A P Shah (hereinafter “AP Shah Committee report”) which submitted its report[12] in October, 2012. The recommendations[13] for safeguarding the privacy of individual subject to video surveillance can be briefly summarised as follows:

• (i) The data controller must notify all the individual about it information practices before collecting any personal information so that the individuals have choice to opt it or opt out of it.
• (ii) The individuals can be notified via signs like “You are under CCTV surveillance” so as to obtain their consent
• The data should be retained for only a short period of time and is not disclosed to or accessed by unauthorised person.
• (iv) The public law enforcement authorities should take permission from court for access of such information and the Court while granting them must consider lawfulness of the act and privacy safeguards.
• (v) Establishment of regulatory body for implementation and enforcement of policies and grievance redressal system.
• (vi) Laws regarding CCTV surveillance should cover both overt and covert video surveillance and in public and private sphere too.

The AP Shah Committee report could certainly be a start point for framing CCTV regulations in India. However, the report, as of now, is completely in the cold box and certainly requires a revisit when we are increasingly moving towards a 24×7 and 360 degree surveillance.

Judiciary’s take on installation of CCTV cameras

In 2019, the Madras High Court[14] held that the installation of cameras for the protection of women does not invade in their privacy nor does it affect their standard of living in whatsoever manner.  In the said case, the court rejected the arguments of discrimination[15], restriction to free movement[16] and interference with privacy[17]. It also held the government has acted well within its legislative competence and enactment of the law has underwent due process.[18] Similarly, while allowing cameras in classroom, the High Court of Kerala[19] opined that, though safety, security and privacy are required to be balanced, that balance of interests can only be done through an appropriate legislation. A. Muhamed Mustaque, J concluded saying “Liberty is given to the State to come out with suitable regulations.”[20]

In June 2018, the Bombay High Court[21] had ruled that CCTV cameras cannot be installed outside one’s apartment without the consent of the residents[22]. The order recognises individual’s right to privacy being invaded through CCTV cameras[23], though it does not bring clarity to the bigger question of video surveillance.

Earlier, the Supreme Court has shown a pro-CCTV approach when it comes to surveillance over public places. From ensuring security in court premises[24], to police stations, prisons[25], schools[26] and public places[27], the Apex court has found the role of CCTV cameras crucial and hence necessary.

Conclusively, we find that the judiciary has come across with three instances, viz. private surveillance, public surveillance and surveillance for ensuring security. While the courts have favoured installation of CCTV cameras in the latter two, there still exists enough ambiguity in the former case. Furthermore, in spite the courts have found it important to have these security measures in certain instances, the have failed to take into consideration the related issues such as extent of surveillance, protection of the footage so stored and authority to use the same. The courts have also noted the absence of a legislative framework to regulate the whole mechanism.

Conclusion

CCTV cameras certainly play a key role in maintaining law and order situation but its misuse, either by the government or by the private individuals, cannot be denied. While it is important to strengthen security of the state, it is equally important to assure protection of individual dignity from video surveillance. Both the states and the judiciary, has shown a rapid pro-CCTV approach in the recent times, favouring mandatory camera installations. Howsoever, they completely ignore the fact that we need a mechanism to regulate every aspect related to this.

From purchase of these cameras to installation and the subsequent storage of data, all this involves sensitive data and must be monitored through appropriate laws. As of now, there lies no remedy for someone against violation of his or her rights through video surveillance and this void must be filled in the least time possible amid this CCTV boom.

 

The authors, Priti Singh and Gaurav Kumar, are currently law students at the Dr. Ram Manohar Lohiya National Law University, Lucknow.

 

[1] Karnataka makes it compulsory to install CCTV cameras in crowded areas, India Today, available at https://www.indiatoday.in/india/story/karnataka-makes-it-compulsory-to-install-cctv-cameras-in-crowded-areas-1305816-2018-08-05, last seen on 15/05/2020.

[2] Maharashtra Government Looking To Make CCTV Cameras Compulsory In Private Buildings, Mumbai Live, available at https://www.mumbailive.com/en/politics/maharashtra-government-looking-to-make-cctv-cameras-compulsory-in-private-buildings-46235 last seen on 15/05/2020.

[3] CCTV Technology Handbook, Space and Naval Warfare Systems Center Atlantic, available at https://www.dhs.gov/sites/default/files/publications/CCTV-Tech-HBK_0713-508.pdf last seen on 15/05/2020.

[4] S. 3(1), The Karnataka Public Safety (Measures) Enforcement Act, 2017.

[5] S. 3(1), Andhra Pradesh Public Safety (Measures) Enforecement Act, 2013

[6] S. 2(g), The Karnataka Public Safety (Measures) Enforcement Act, 2017.

[7] K.S. Puttaswamy (Retd.) and Anr. v. Union Of India and Ors, (2017) 10 SCC 1.

[8] S. 66E, Information Technology Act, 2000.

[9] White Paper of The Committee of Experts on A Data Protection Framework for India, page 53, Justice B.N. Srikrishna Committee, available at https://innovate.mygov.in/wp-content/uploads/2017/11/Final_Draft_White_Paper_on_Data_Protection_in_India.pdf last seen on 15/05/2020.

[10] Clarification on Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 Under Section 43A of the Information Technology ACT, 2000, Pressnote by The Department of Information Technology, available at https://pib.gov.in/newsite/erelcontent.aspx?relid=74990, last seen on 15/05/2020.

[11] 10 central agencies can now snoop on “any” computer they want, The Economic Times, available at https://economictimes.indiatimes.com/news/politics-and-nation/10-central-agencies-can-now-snoop-on-any-computer-they-want/articleshow/67188875.cms?from=mdr, last seen on 15/05/2020.

[12] Group of Experts on Privacy Submit Report, Press Information Bureau, Government of India, Planning Commission, available at https://pib.gov.in/newsite/PrintRelease.aspx?relid=88503, last seen on 15/05/2020.

[13] Report of the Group of Experts on Privacy, Justice AP Shah Committee, available at https://www.dsci.in/sites/default/files/documents/resource_centre/Report%20of%20the%20Group%20of%20Experts%20on%20Privacy%20constituted%20by%20Planning%20Commission%20of%20India.pdf, last seen on 15/05/2020.

[14] P.S. Deepthi v. State of Tamil Nadu, W.P.No.6629 of 2019 & W.M.P.Nos.7454 and 7539 of 2019 (Madras High Court, 22/03/2019)

[15] Ibid. para 61.

[16] Ibid. para 57.

[17] Ibid. para 41.

[18] Ibid. para 56.

[19] Muraleedharan v. State of Kerala, W.P.(C) No. 26168 of 2018, (High Court of Kerala, 30/11/2018)

[20] Ibid. para 7

[21] Farhad Ginwalla and Ors. v. Zenobia R. Poonawala, 2018 SCC OnLine Bom 1265.

[22] Installing CCTV Cameras To Monitor Movement Without Flat Owner’s Consent Is Invasion Of Privacy: Bombay HC, Live Law, available at https://www.livelaw.in/installing-cctv-cameras-to-monitor-movement-without-flat-owners-consent-is-invasion-of-privacy-bombay-hc/, last seen on 15/05/2020.

[23] Farhad Ginwalla and Ors. v. Zenobia R. Poonawala, 2018 SCC OnLine Bom 1265, para 7.

[24] We don’t need privacy; CCTV cameras should be installed in the Courts: SC, The SCC Online Blog, available at https://www.scconline.com/blog/post/2017/11/21/dont-need-privacy-cctv-cameras-installed-courts-sc/, last seen on 15/05/2020.

[25] Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598.

[26] SC refuses to stay plea on installation of CCTV cameras in govt schools, Livemint, available at https://www.livemint.com/news/india/sc-refuses-to-stay-plea-on-installation-of-cctv-cameras-in-govt-schools-1562937341103.html, last seen on 15/05/2020.

[27] Dilip K. Basu v. State of West Bengal, (2015) 8 SCC 744.