Is installation of CCTV cameras by the Indian government a violation of right to privacy?

A petition has been filed on grounds that CCTV violates the right to privacy and gives rise to stalking.

The SC has recently issued a notice to the Delhi government in a petition filed against the Delhi's government's order to install CCTV cameras in school classrooms and make the footage accessible on a real time basis to parents of children studying in the schools. The petition has been filed on grounds that it violates right to privacy and gives rise to stalking and voyeurism. The petition also argues that CCTV installation in classrooms will result in psychological pressure and trauma to adolescents.

Representational image.

Representational image.

CCTV surveillance in schools and public spaces in Delhi

Taking cognisance of incidents of a murder of a 7 year old child in Ryan International (Gurgaon) and the rape of a 5 year old at a Delhi school, the Delhi Government in September 2017 directed all government and private schools in Delhi to install CCTV cameras covering the entire school premises included classrooms.

In January 2018, it was reported that the Delhi government had directed the process of installation of CCTV cameras to begin in three months. In April 2018, the Delhi government sanctioned Rs 800 crore for CCTV installation in Delhi.

This is not the first time that the Delhi government’s decision to install CCTV cameras in schools has been challenged. In July 2018, a PIL was filed by Daniel George in the Delhi HC, seeking a direction to the Delhi government to shelve its plans of installing over 1.4 lakh CCTV cameras in government schools; the petitioner questioned the rationale behind the government’s decision and raised concern that in the absence of any regulatory oversight, it would result in indiscriminate distribution of the CCTV footage. In response, the Delhi government stated that the CCTV footage would be password-protected and the password would only be given to parents. In September 2018, the Delhi HC dismissed the petition, rejecting the privacy argument on grounds that there was nothing private done in classrooms, and that there was a need to balance privacy and safety concerns.

A contentious issue is the lack of a standard operating procedure (SOP) to access, control and handle data in case of CCTV cameras installed by public and private authorities. In May 2018, following allegations by Congress of irregularities in the Delhi government’s tendering process related to commissioning of CCTV cameras, Lieutenant Governor of Delhi, Ajay Baijal constituted a panel to draft an SOP for CCTV cameras; the Delhi government had criticised this move, arguing that any CCTV installation in the Indian capital would replicate the New Delhi Municipal Corporation (NDMC) SOP model. Subsequently, the Delhi government announced that NDMC, which had been installing CCTV cameras in residential colonies for citizens’safety, had stopped further CCTV installation.

The Delhi government’s installation of CCTV cameras can be traced to the manifesto of Aam Admi Party (AAP) for the Delhi general elections in 2015, wherein, AAP proposed to install 10-15 lakh CCTV cameras for the safety of women. When the Delhi government announced the installation of CCTV cameras in school classrooms in its 2015 budget, senior BJP leader, Vijay Jolly, condemned the decision as “spying” on teachers.

Constitutionality of installing CCTV cameras in classrooms

The petition in the instant case has challenged the installation of CCTV cameras in classrooms. For the government’s decision to stand the privacy challenge, it will have to satisfy the test laid down in the Puttaswamy judgment, namely- the measure has to be backed by legislation (legality), necessary to achieve a state objective (necessity) and proportional to the objective sought to be achieved (proportionality requirement); it seems difficult that the government will be able to meet this test because it is more likely that any crime against children will be committed in secluded spaces in schools (to preclude detection & witnesses to the crime) and not in classrooms which are generally not empty during school hours. . Cases of bullying too are more likely to be committed outside of the classroom, for instance on a playground. This, however, does not rule out the possibility that incidents of corporal punishment or humiliation of a student by the teacher may take place in a classroom, or that crimes against a child may be committed in an empty classroom

Even if there is a legitimate concern of the government that in the absence of video surveillance, crimes may be committed in the classroom, the decision to install CCTV cameras has to be balanced with the other fundamental rights at issue, namely, privacy and right to freedom of speech and expression of children and teachers. A 2008 study by the Association of Teachers & Lecturers (ATL) in the UK found that some teachers objected to the general monitoring of staff and preferred that the video surveillance be disabled in classrooms so that the teachers do not feel conscious while teaching. CCTV cameras in schools may also lead to teachers not being able to express their opinions freely if they feel that they are under surveillance, this will severely impact dissemination of ideas. It is also conceivable that a child’s personality will be curbed if they are constantly under surveillance; it is possible that a parent might impose their own ideas on their child and prevent them from interacting with students of another gender or community. Schools should allow children to develop as individuals which may not be possible if they are monitored throughout by parents and school authorities, when children otherwise follow the school’s rules and regulations.

The fact that in limited circumstances, such as when a classroom is empty, a crime may be committed against a child in the classroom, cannot by itself be a reason to install CCTV cameras and provide the live feed to parents. By the same logic, a crime can also be committed in an empty school washroom, does this mean that the government should also install audio recording devices in school washrooms to prevent crime? A less intrusive measure to protect children in such cases would be to ensure that classrooms or spaces in schools which are not under video surveillance (for instance, washrooms) should be locked outside of school timings.

Surveillance in school classrooms in other countries

News reports indicate that facial recognition cameras have been installed in classrooms in Hangzhou Number 11 High School in China which scan faces of students in a classroom every 30 seconds to determine whether the child is attentive in class; the results are available along with the names of the children to the teacher to help them gauge students’ attentiveness; such surveillance has been denounced by the school’s students.

Last year in France, a private catholic-run school proposed that its pupils carry Bluetooth tracking devices to enable teachers to take attendance instantly and track whether a student was playing truant; the school proposed fining students who forgot or misplaced the tracking device.

The debate on ensuring safety in school classrooms through surveillance technology in the US is motivated by recent incidents of school shootings; it is not clear, however, whether cameras are also proposed to be installed within classrooms. States such as Texas, West Virginia and Georgia allow installation of CCTV cameras in special education classrooms to enable detection of violence against specially-abled children in cases where they are unable to report abuse. Under the Texas law, a video recording installed in a special education classroom is confidential and can be viewed only if there is a report of “abuse, neglect or sexual assault” as defined under the Texas state family code. Further, there is an obligation to inform individuals that they are being recorded and if the video shows the images of children (other than the one suspected to be a victim of abuse), such images are to be redacted.

One could argue that the Texas law is a model worth emulating for the Delhi government, i.e. instead of making the video recording of classrooms available to parents at all times, the government should restrict the accessibility of the CCTV footage collected and make it available only during legal proceedings. However, the problem with this approach is that in the absence of a data protection law in India, there is a possibility that this data may fall into the wrong hands and be misused.

Under the proposed Personal Data Protection Bill in India, ‘guardian data fiduciaries’ (which include the State) are barred from profiling, tracking or undertaking any other processing of personal data that can cause significant harm to the child; significant harm means “harm that has an aggravated effect having regard to the nature of the personal data being processed, the impact, continuity, persistence or irreversibility of the harm”; this may include psychological harm due to constant CCTV surveillance. CCTV installation in classrooms may be distinguished from installing CCTV cameras in public spaces like public transport systems; in the latter case, the CCTV footage of a person is limited, which is not true for CCTV surveillance of a child in a classroom.

The government should be wary of the privacy and data protection challenges involved and without any comprehensive study into the benefits of installing CCTV cameras in classrooms abstain from such a move.

Devika Agarwal writes on technology policy & holds a Master of Law degree from Cambridge.

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