Codified Law Empowering Agencies To Undertake Surveillance Subject To Constitutional Mandate Needed : Justice MM Sundresh

Supreme Court judge Justice MM Sundresh on Saturday spoke about the need to have codified law regarding surveillance.“There must be a codified law that empowers the agency to undertake acts of surveillance. Such a law must be subject to constitutional mandate. It'll prevent arbitrary action preserving the privacy of individuals", Justice Sundresh said, while delivering a lecture on the topic "State Surveillance and privacy: The Lakshmana Rekha Between".The event was organized by CAN foundation in collaboration with NLIU Bhopal and HNLU, Raipur.Justice Sundresh began his address by recalling an article published in the New York Times on April 30th, 1978, titled "Fading Hope in India," which made a striking comment just two days after the ADM Jabalpur judgment. It said “ If India ever finds back its way to independence, someone will erect a monument dedicated to Justice HR Khanna”. He emphasized that Justice HR Khanna continues to be a guiding light in this regard. Justice Khanna's dissenting opinion in the ADM Jabalpur case, which upheld the suspension of fundamental rights during the Emergency in India, is widely celebrated for its commitment to upholding individual liberties.Delving into the concept of privacy, Justice Sundresh drew upon the words of George Orwell, who warned about the perils of letting your thoughts wander in any public space.On the historical context of Surveillance: Tracing its Origins to ancient civilizationsMoving on to the historical context of surveillance, Justice Sundresh traced its origins to ancient civilizations. He noted that the term surveillance originated in 1883 in France. But the concept was as old as civilization itself. In India, surveillance has been used since ancient times. Justice Sundresh recalled that Kautilya devoted chapters to the methods and objectives of secret services. Spies constantly kept a watch on the populace and recorded their movements. It used to be the responsibility of a diplomat to send regular updates to the kingdom on rival kingdoms.Justice Sundresh further explained in his speech that with the onset of the Great French revolution: liberty, equality, fraternity became the call of modern society. The Republican govt constituted surveillance to identify aristocrats. They were kept under constant vigil. This practice continued throughout the 18-19th century.He highlighted pivotal moments in history when surveillance expanded. Earlier, Telephonic conversations were tapped through radiowaves. The need for state surveillance further escalated during World War II, with both the Allied and Axis powers intercepting enemy codes. It was further aggravated in the Cold War era when surveillance didn't stop with foreigners alone but also against own citizens. Surveillance became a preventive tool, enabling authorities to act in anticipation of potential threats. The Western bloc established the first global surveillance program during this period.Need for surveillance in modern tech era: Security implicationsJustice MM Sundresh in his speech highlighted that the need for stronger surveillance was felt after the twin towers attack. Therefore countries came up with the Prism program. In the US, they enacted Patriot Act, 2001 which gave enforcement agencies sweeping powers to investigate individuals suspected of terrorism.In the context of modern-day surveillance, Justice Sundresh emphasized the utilization of CCTV cameras and facial recognition technology. Referring to the Forbes list of 2021, he pointed out that India ranked among the top countries with the highest number of surveilled cities. Surpassing even Beijing, Delhi topped the list in terms of the density of CCTV cameras.Expressing concern, the Supreme court judge lamented that the modern world has become a challenging place to live, and the price of peace is exceedingly high. He emphasized that any state lacking expert surveillance would be considered weak and susceptible to attacks from unknown sources, leaving it vulnerable both internally and externally.On the Philosophical Underpinnings of the Concept of PrivacyShifting the focus to the philosophical underpinnings of the concept of privacy, Justice Sundresh underscored its intrinsic importance to human beings in his speech. He emphasized that the concept of privacy has become an intrinsic part of human beings. He referred to Aristotle's division between public and personal spheres, which can be seen as an early recognition of individuals' right to privacy, establishing a confidential zone. He also highlighted the ideas put forth by JS Mill, who advocated for the need to curb tyranny and quoted Granville Austin, who asserted that individual privacy must extend even to public spacesPost Puttuswamy era: Right to Privacy as a cherished inviolable fundamental rightThe Supreme Court judge then discussed the Puttuswamy case where the Supreme court recognized the right to privacy as a basic and core want subject to reasonable restriction under Art. 21....

Codified Law Empowering Agencies To Undertake Surveillance Subject To Constitutional Mandate Needed : Justice MM Sundresh

Suraj Kumar

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