Policy | Is India ready for the next level of digital mass surveillance?

Previously, in PUCL v Union of India, the Supreme Court of India laid down guidelines for interception of telephone calls to safeguard an individual’s privacy rights. More recently, privacy has been held to be a ‘fundamental right’ by the Supreme Court in the landmark decision of J Puttaswamy v Union of India. This decision, overruled an earlier decision in Kharak Singh v The State of UP, which maintained that privacy was not protected under the Constitution.

The Puttaswamy case maintains that privacy, however, is not an absolute right and is subject to exclusions involving instances which dealt with sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence as per Article 19(2) of the Constitution. The Puttaswamy judgment, held out the three-fold test, in determining privacy violation: (a) legality; (b) legitimate state aim; and (c) proportionality.

In response to a notice issued by the Internet Freedom Foundation, a non-profit organisation, questioning the legality of the AFRS system, the Union Home Ministry’s response was that such a system had procured the Union Cabinet’s approval. It further contended that such a system did not violate ‘consent’ given that it was primarily to be used for the identification of recovered children, and the identification of dead bodies.

The primary concerns with imposing such a system are three: Absence of a law, absence of safeguards, and, societal biases:

Absence of a Law: India desperately needs legislation governing personal data protection; however, the draft Bill, made public in 2018, is expected to be tabled in the ongoing winter session of Parliament. In the absence of such legislation, there are no legal recourses available for violation of fundamental rights occurring from the implementation of such a system.

Absence of safeguards: The Puttaswamy judgment prescribed the three-fold test for privacy denial. The AFRS in its current form suffers from an absolute lack of checks and balances, which would ensure that the prescribed guidelines are abided by.

Societal Biases: Despite the best efforts to maintain security, the threat of such a database falling into the wrong hands is a very palpable one. In December, it was revealed that the London Gangs Matrix; a database of suspected gang members in the United Kingdom, leaked, resulting in the targeting of gang members and increased acrimony towards suspected members, with neighbours resorting to increased security measures against ‘suspects’.

The Gangs Matrix was created after the 2011 London riots, but the Information Commissioner's Office (ICO) said it had been so poorly managed since its inception that it constantly failed to properly differentiate between dangerous offenders and their victims. It is contended that the ‘leakage’ of the AFRS could lead to similar disastrous circumstances and result in violent insurgence against members of particular communities.

In 2018, it was reported that China was building the world’s largest surveillance system, which consisted of hundreds of cameras equipped with facial recognition software, combined with Artificial Intelligence (AI) that were able to track with great accuracy. It was later reported that the system had propagated segregation of ethnic groups. Whether India too is headed this way, time will tell/

Vikram Koppikar is senior legal and privacy counsel at Tata Consultancy Services. Views are personal.