19 July 2023 7:08 AM GMT
The legislature and judiciary has mostly overlooked the concerns of prisoners regarding the situations of life in prison throughout our history. There are several international agreements that set standards for how prisoners should be treated including Universal Declaration of Human Rights, (1948), Convention against Torture and other Cruel Inhuman or Degrading Treatment...
The legislature and judiciary has mostly overlooked the concerns of prisoners regarding the situations of life in prison throughout our history. There are several international agreements that set standards for how prisoners should be treated including Universal Declaration of Human Rights, (1948), Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishments, (1984), and United Nations Standard Minimum Rules for the Treatment of Prisoners, (1955). Indian Prison Administration System has travelled a long way to revolutionize the treatment and protection of prisoners by the use of technology. It all started with the use of CCTV cameras in prisons to the present use of drones. The Supreme Court of India in the year 2015 had given directions for installation of CCTV Cameras in police stations. The reasons for the same were to prevent the violation of human rights and maintenance of discipline amongst the inmates.
The Report of Prison Statistics 2021 released by National Crimes Records Bureau, India reveals that 2029 inmates from all states and 87 inmates from all union territories had died in 2021 leading to a tally of 2116 prison deaths in the country substantiates the necessity of drone surveillance for monitoring inmates.
In India, Uttar Pradesh was the first state to use drones in prisons. Recently, the State Prisons Department of Maharashtra by becoming the second state had decided that it shall be using drones for surveillance of prisoners. The decision is said to be taken for strengthening the security in the prisons by keeping an eye over the complete movement of prisoners to be monitored by the drones. Prison security as the main rationale behind the use of drones on one hand and privacy of prisoners as the other aspect does require due consideration.
Issues revolving Drone Surveillance
It seems well justified on the part of the respective state governments to come up with such technological advancements for fostering the needs of prisons. The Courts in plethora of cases have very well affirmed the fact that there is a necessity to install CCTV cameras in prisons as it helps the authorities in reporting the cases of abuse, violence and escape of inmates from prisons. On the contrary, several incidents have been reported where the CCTVs cameras were even installed in female changing areas posing a major threat to privacy of female inmates. In Byculla, female convicts were forced to participate in a hunger strike in opposition to the deployment of CCTVs in the restroom. Additionally, other such incident so prevalent was the aid provided to the prisoners for escape by the police officials by claiming the absentia of CCTV footage due to malfunctioning of cameras. Not only this, CCTV cameras have been found installed in toilets where a prisoner can expect some sort of privacy.
The ply of drones all over the prisons if not restricted for several areas shall at times might lead to the commission of voyeurism crime by the unauthorized observation of male prison official to look at a woman inmate secretly. According to the Union for Canadian Correctional Officers (UCCO), drones are also delivering huge number of steroids, mobile phones, and offensive weapon like hacksaw blades, and ceramic knives. More frequently, deadly contraband like narcotics and mobile phones are delivered to prisoners via flying gadgets. In prisons of Canada (from the Atlantic Canada to West Coast), violence and overdoses have escalated as a result of the contraband, which has also put heavy financial strain on prisoners. Currently, approximately 75% of contraband seizures are connected to the drone drops. As per the Audit of the Department of Justice (2020), the incident statistical from the Federal Bureau of Prisons (BOP), indicate that the rate of recorded drone incidents in American prisons scaled by more than 50% between 2018 to 2019.The prison officials having access to such personal information of inmates through the use of drones might use it as a way of extorting money from prisoners. Privacy and safety in prisons are seriously threatened by drones. Drug smuggling incidents with use of drones can be expected to be carried by the prisoners in conspiracy with the prison officials as similarly found to have taken place in Fort Dix Prison, New Jersey.
Mass monitoring has significantly restricted the freedom of movement for females and other marginalized communities, exposing them to ongoing moral policing. Criminals in prisons can involve in unlawful surveillance by capturing sensitive information such as layout of prisons and monitoring of guards and making the same information available to external sources. Considering all these instances, the prisons department of different states in order to ensure the privacy of prisoners need to specifically authorize a police official who would only have the access to operate drones in prisons and be held accountable in case of any disclosure of prisoners personal information including photographs and videos. If left unregulated; shall raise the concern of not just privacy but gender based privacy.
Privacy of Prisoners in India
The criminal is nonetheless covered by the legal and constitutional safeguards while incarcerated. In India, right to life and personal liberty as envisaged under Article 21 of Indian Constitution implies right to privacy of all the citizens extends to the prisoners as well. It requires the state to respect an individual’s right to life and personal liberty and not to take such rights away from them other that the procedure established by law.
In the case of St. ofAndhra Pradesh v. Challa Ramakrishna Reddy, the SC stated that Article 21 of the Indian constitution guarantees everyone the Right to Life, which is one of their fundamental human rights. It is so basic that not even the state officials have the right to infringe it. Even when being held in prison, a prisoner retains all of their fundamental rights. He still qualifies as a human being and has the right to enjoy all fundamental rights which include Right to Life.
The Judicial Activism of the Supreme Court has a significant influence on the criminal justice system and preserving the fundamental rights of prisoners in every aspect. The court in the case of Charles Shobraj v. Superintendent ruled that while the rights granted to prisoners by Articles 14, 19, and 21 of the Constitution of India are subjected to reasonable restrictions, they cannot be abolished.
In NilabhatiBehera v. State of Orissa, the Court held that there is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. Additionally, the court held that the significant importance of human dignity and the intrinsic value of the human being embodied in Article 21 when read in conjunction with Articles 14 and 19 mandate the state not to imprison the person unless the law is adequate, just and reasonable in its procedural requirements.
Since punishment is bad in and of itself when it causes anguish and suffering to another person without their consent, it requires some justification. A violation of privacy in the way of interference on a person’s seclusion may also justify a claim for private nuisance. Invasion in the manner of the revelation of personal data may be a result of a violation of privacy, for instance when private pictures of a prisoner take by a drone and are posted online. There is no adequate explanation for the claim that security cameras and drones are the sole essential, practical, and effective way to directly address the issues of human abuse and incarceration-related mortality. Installation of cameras at specified areas in the prisons will appear to be justifiable by balancing the interest of prison security and privacy of prisoners but complete surveillance of the same through drones raises a high concern for the prison authorities to be looked upon.
The sole proposed legislation that addresses the issues of privacy is the Personal Data Protection Bill, (2019), which remains to be enacted as a law and is now being examined by a Parliamentary Committee. However, the Bill is inadequate for addressing with privacy issues concerning drone monitoring by the government. In fact, the Drone Rules, (2021), doesn’t monitor surveillance and majority of surveillance is conducted without any kind of procedural protection via executive notice. Therefore, the historic judgement of Supreme Court in the case of K SPuttaswamy v. Union of India serves as the only source of law in this aspect which ruled privacy as a fundamental right under Article 21. The court further stated that though reasonable expectations of privacy cannot be placed in a public area, this doesn’t imply that privacy of a person should be completely abandoned there. The basic right to privacy is thereby violated by drone surveillance that is conducted without restriction.
The purpose of prisons is no longer limited to the retributive and deterrent forms of punishments. Since being sentenced itself is a suffering for a prisoner, prisons are supposed to be places of rehabilitation rather than places where the prisoner is more punished which further lead to the violation of their fundamental rights. Drones are an innovative technology with significant economic and social advantages. Despite its potential, drones also present a special threat to privacy. The increasing number of drones and cameras has been regarded as a significant risk to privacy both domestically and internationally. In India, the current legislation on the usage of drones fails on the standards of proportionality. Therefore, firstly, the prison official operating the drones should be made well aware about protecting the personal data of prisoners and be held accountable for disclosure of information. Secondly, standard operating procedure should be laid down for surveillance of prisoners. Privacy and dignity especially of women prisoners must receive the foremost priority. Lastly, clear specification of areas inside jail premises should be listed out for surveillance through drones.
The authors are Assistant Professors at School of Law, Presidency University, Bengaluru. Views are personal.