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

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 civilizations

Moving 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 implications

Justice 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 Privacy

Shifting 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 spaces

Post Puttuswamy era: Right to Privacy as a cherished inviolable fundamental right

The 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. It overruled the earlier MP Sharma judgment and reiterated that fundamental rights under Part III must be understood by reading articles together.

In his speech, he emphasized that “there must be a law to justify an encroachment on privacy, It must have a legitimate objective and have a constitutional mandate.”

He continued the deliberation while quoting Puttuswamy that “No generation can have a monopoly over solutions to foresee the future. Institutions created by the constitution must adopt flexibility. Constitutional interpretation is but a process of achieving justice.”

He stressed that the right to privacy has firmly entrenched itself as an inviolable fundamental right. So, the state has to apply the doctrine of proportionality. One cannot be unmindful of the present need for surveillance. Surveillance and privacy must exist together.

On Increasing role of technology in criminal investigations

The Supreme Court judge emphasized that Technology has become part of criminal investigations and evidence. He highlighted the significance of adequate criminal investigations as the foundation for discovering the truth.

Judge Sundresh acknowledged that technology now plays a pivotal role in bringing culprits to justice. However, he also noted that difficulties arise when the use of surveillance extends beyond what is necessary. Phone tapping, email interception, GPS location determination, and other techniques have become easier to employ.

The judge referenced the movie "Enemy of the State" released in 1998, where voice recognition technology and satellite tracking were used to locate a fugitive using a public phone. This was the portrayal 25 years ago.

He further cited one more instance where in the movie Zero dark thirty, he asks if can we just get him on the phone? This phrase is very telling. It demonstrates the state can catalog millions of phones and identify each and every individual. Every moment of an individual has become susceptible to surveillance,

 “Use of AI and advanced tech have made surveillance more easier. An element of moderation is expected to be followed in a fair investigation. The challenges are no doubt huge and ever-evolving but there must be a constant endeavor to uphold this concept of liberty- namely privacy", he said.

While acknowledging the inevitability of technology's usage, he stressed the importance of preventing its misuse and establishing clear boundaries during criminal investigations

On the Need for clear laws to govern surveillance activities

The Supreme Court judge, in his speech, quoted the Puttuswamy case- “any action facilitating an investigation agency must be backed by law. There must be a codified law that empowers the agency to undertake acts of surveillance. Such a law must be subject to constitutional mandate- part. It'll prevent arbitrary action preserving the privacy of ind. When we provide for law, implementation and monitoring agencies must consist of high dignitaries.”

Judge Sundresh acknowledged that the Puttuswamy case has become a guiding light for the data protection framework in India. The courts will play a crucial role in determining the boundaries and contours of privacy in the digital era.

While concluding, Justice MM Sundresh said that the duty of preserving privacy-a cherished right enjoined by the constitution is upon all 3 pillars of democracy. Acting through the prism of proportionality would go a long way in safeguarding this right. The task is very complex but it's intriguing to know it’ll continue to haunt courts at various levels in the years to come.