Centre Defends Before Delhi High Court Police Surveillance Of Jantar Mantar Protests, Calls Claim Of Privacy In Public Space 'Ironical'
The Central Government on Tuesday defended the videography of protesters at Delhi's Jantar Mantar before the Delhi High Court, contending that "every protest is videographed" as a routine law-and-order measure and that a "claim of privacy in a public place is ironical."
The submission was made before a Division Bench comprising Chief Justice D.K. Upadhyaya and Justice Tejas Karia in response to a public interest litigation alleging continuous police surveillance, including the use of facial recognition technology, against peaceful protesters at the designated protest site.
Appearing for the petitioner, Senior Advocate Nandita Rao relied on the Supreme Court's decision in K.S. Puttaswamy to submit that the right to privacy extends even to persons protesting in public spaces. While such a right may be restricted, she argued, any restriction must satisfy the three-fold test of legality, legitimate State interest and proportionality.
"Law in Puttuswamy is very clear. In a democratic polity, there is right to privacy at public place. Even during protest. Yes it can be restrained but there is triple test. It is to be based on State need and it has to be proportionate."
She contended that the present petition was filed before the police action of July 20 and specifically challenges the surveillance of young protesters, including girl students aged 16 to 20 years.
Referring to media reports, Rao alleged that the police were deploying live facial recognition technology during protests. "Today's newspaper... It says they have vans doing live facial recognition. Based on 80 percent match a person can be undertrial for years. They have registered a larger conspiracy case," she said.
She maintained that these issues were not the subject matter of the other pending petitions arising out of the protests and requested the Court to direct the respondents to file a reply in the matter.
Raising a preliminary objection to the plea, Solicitor General Tushar Mehta for the Union Government submitted that the Supreme Court has already recognised designated protest sites, following which the Government issued a standing order regulating protests.
He argued that videography of protests is a standard law-and-order measure and is not confined to the present protest at Jantar Mantar. "For enforcement of law and order, videography is accepted mode," he said.
Referring to the standing order, Mehta submitted that protest organisers themselves undertake to abide by its conditions.
While acknowledging that privacy is a fundamental right, the Solicitor General submitted that it is not absolute and may be restricted where there is a legitimate State interest. "Suppose some unwarranted incident takes place, students are protesting and some stranger comes and does something, the government must have mechanism," he said.
He further argued that a claim of privacy in the context of a public protest is misplaced, particularly when participants voluntarily gather in public spaces and frequently record and disseminate videos of the protests themselves. "When you are doing something in public place, claim of privacy is ironical... Every protest is videographed...we have a situation where more than some particular number of people are gathered. All are students that is our assumption. Throughout protest site, not just this protest, videography is done. The protesters and influencers are taking interviews. Its ironical they are claiming privacy. There cannot be any privacy unless we are trying to intrude upon some person."
Rao however contended that privacy violation of protestors is "criminalising" a very fundamentally democratic right. She submitted,
"There is a difference between State and private individuals recording. There can be suit for defamation. They can't misuse their footage. This SOP, the purpose of videography, what is the purpose? Just to see number of protesters. Not to see their names, their colleges and later to threaten them...I urge your lordships not just as parents of Constitution but also of parents. Private conversations are recorded. Tomorrow these recordings will be cut pasted and I will have to face criminal trial."
Rao further pointed that the government SOP has no data protection clause. "Where do they secure these footages?" she questioned.
Rao insisted that the government must make a comprehensive procedure and protocol. "Even for telephone tapping there is a protocol...What are we asking? Have a structure of law. Protect us from misuse.," she asserted.
Solicitor General then pointed the protestors themselves are posting on social media that everyone should videograph everything. To this, Rao responded,
"Can a citizen arrest someone basis of this data? Sir you are at a much higher footing at us. This is an important issue. Let them give detailed affidavit and hear it."
As the counsels "remained inconclusive", the Court said, it needs time to "make up its minds".
The matter will now be taken up on Monday (July 27).
The PIL has been filed by former Jawaharlal Nehru University Students' Union (JNUSU) president Aishe Ghosh, who has alleged that peaceful protesters at Jantar Mantar have been subjected to continuous photography, videography and monitoring by the police.
The plea contends that the surveillance is indiscriminate, extending to every individual present at the site regardless of any suspicion of unlawful activity. It alleges that the monitoring encompasses not only acts of protest but also ordinary daily activities such as eating, resting and seeking medical assistance.
The petition further alleges that the surveillance apparatus has been used as an instrument of intimidation against student protesters.
Yesterday, Mehta had said that the measures in question were undertaken solely to maintain law and order and did not amount to surveillance or snooping.
"At Jantar Mantar, some or the other protest is going on. Every protest is always recorded. In this protest, as a matter of fact, hundreds of people are seen making videos and reels and making them viral. This is only for the purpose of law and order. There is no snooping. There is no surveillance," Mehta had submitted.
Title: MS. AISHE GHOSH v. UNION OF INDIA & ANR