Police Can't Carry Out Intrusive Surveillance; Opening Rowdy Sheets, Collecting Photos, Home Visits As Per Standing Orders Violate Privacy : AP High Court

In a significant judgment, the Andhra Pradesh High Court held that the opening of rowdy sheets to brand persons as "rowdies", collection and display of their photos, domiciliary visits and summoning to police station as per the existing Police Standing Orders amount to a "direct infringement of the right to privacy".

The Court held that the Police Standing Orders do not qualify as "law" within the meaning of Article 21 and without the sanction of law, the police cannot collect the personal information of persons and conduct home visits.

"This collection of photos; the display of photos; branding a person as "rowdy"; summoning to the Police Station, parading / waiting domiciliary/home visits etc., as per the Police Station Orders are a direct infringement of the petitioners' right to privacy. Henceforth with the existing Police Standing Orders the police cannot do the same. The police cannot summon any person to the Police Station, visit any home or house for surveillance; for gathering information, take or display photographs, fingerprints etc., or even classify/ label a person as a ROWDY etc. They cannot carry out intrusive or obtrusive surveillance", the judgment delivered by a single bench of Justice DVSS Somajayulu stated.

The bench allowed a batch of writ petitions filed by several persons who questioned the opening and continuation of rowdy sheets against them by the police. T

Noting that privacy has been declared to be a fundamental right under Article 21 of the Constitution by the 9-judge bench of the Supreme Court in the KS Puttaswamy case, and that the said right can be restricted only in accordance with "law", the Court directed the closing of all rowdy sheets. The Court accepted the petitioners' argument that the Police Standing Orders are mere departmental instructions without any statutory backing and hence cannot be called "law".

Collection of personal data can only be in accordance with law; Standing Orders violate privacy

In conclusion, the Court observed :

"It is also made clear that in view of the authoritative pronouncements of the Hon'ble Supreme Court of India ending with the case of K.S.Puttaswamy case (2 supra) and as the Police Standing Orders are not law and do not meet the rigorous standards prescribed, the summoning to the station, intrusive surveillance, display of photographs etc., will amount to a breach of the Fundamental Right of privacy".

"All the rowdy sheets opened in this batch of Writ Petitions are directed to be closed immediately. The police cannot open or continue a rowdy sheet or collect data pertaining to a person without the sanction of "law". Collection of personal data and its usage for prevention of crimes also can only be in accordance with a "law" which crosses the thresholds mentioned in the Constitution of India and the various judgments including K.S.Puttaswamy case (2 supra) since 'privacy' is now a Fundamental Right as per Part- III of the Constitution of India. It is reiterated that the police cannot (under the existing orders) indulge in night visits; domiciliary visits to the houses of a suspect or accused. They cannot take or demand the photographs, fingerprints etc., except under the procedure established by a 'law' and if the conditions laid down are satisfied. Accused or suspects cannot be summoned or called to the Police Station or anywhere else either during festivals / elections/ weekends etc. They cannot be made to wait at the Police Stations for any reason or seek permission to leave the local jurisdiction".

Police Standing Order not "law"

"It is clear that the Manual is only a guideline and procedure for all the police officers. Thus (apart from the authoritative case law) it is clear that the Police Standing Orders do not have any statutory force. They are not even regulations and are mere departmental instructions. It is clearly spelt out in all the three G.O.s, mentioned above that they will not supersede any rule or regulation. They are admittedly not framed under the Police Act, 1861 or any other such law"

State should enact law on surveillance

At the same time, the Court also recognised the compelling State interest in keeping a check on habitual offenders to prevent crime. However, surveillance cannot be done without the sanction of law.

Therefore, the Court recommended the framing of law to collect intelligence to prevent crimes.

"The State should either frame statutory rules or enact a law within a short time on these issues of surveillance etc., since there is a need for gathering information / intelligence to prevent crime. This should be done on a high priority", the Court observed.

"The correct method is to enact a "law" permitting the surveillance etc., for gathering information only", the Court suggested.

Invoke CrPC provisions for taking security for keeping good behaviour

The Court also suggested that the provisions of Chapter VIII of the Code of Criminal Procedure regarding taking security from habitual offenders for keeping peace and good behaviour can be invoked.

"This Court also notices that Chapter-VII of the Cr.P.C., is hardly being invoked by the Police. This provides for obtaining security for keeping the peace and for good behaviour i.e., to prevent crime. The various Sections 106, 111 and other sections of this Part of the Cr.P.C., are in the opinion of this Court enough to meet the apprehension of the police that they should know about the activities of the people, who are classified as rowdies etc., and for preventing crime. In fact, Sections 107 and 109 Cr.P.C., deal with people, who are likely to commit a crime, which is a cognizable offence or disturb the public tranquillity etc., and to take preventive steps. Similarly, Section 110 (a) to (g) of Cr.P.C., also deals with 'habitual offenders'. These Sections also provide some procedural safeguards. Their efficacy and use has been recognised and upheld in cases like Madhu Limaye v Sub-Divisional Magistrate22. Therefore, for the present, this Court is of the opinion that if the Police are of the opinion that a check must be kept on the activities of the habitual offenders or others likely to commit a crime and to prevent a crime the provisions of this Chapter must be utilised", the Court said.

The Court also said that the solution can be found in the recently passed Criminal Procedure (Identification) Act 2022.

Case Title : Udathu Suresh vs State of Andhra Pradesh and others

Citation: 2022 LiveLaw (AP) 92 

Click here to read/download the judgment

.