The Delhi High Court sought a response from the Delhi government on a plea seeking quashing of the Delhi cabinet’s decision for installation of Closed Circuit Televisions (CCTVs) inside classrooms of all public-aided schools in the national capital and consequent live-streaming of video footage to the public at large. The division bench, comprising Chief Justice DN Patel and Justice Jyoti Singh, gave notice to the Delhi government and the private company which has been awarded the tender for the installation work.
The petition was filed by Advocates Jai Anant Dehadrai, Sidharth Arora, Jaskaran Singh Chawla and Soujanya Ketharaj on behalf of the Delhi Parents Association and Delhi Government School Teachers Association. It alleged that the impugned decision is in violation of the order of the apex court in KS Puttaswamy, which guarantees individual privacy as a fundamental right enshrined under Article 21 of the Constitution.
The Delhi government had in September 2017 convened a meeting wherein the decision for mandatory installation of CCTV cameras in the classrooms of government schools was taken. Another meeting of the Delhi government was convened in December 2017, where it was resolved that the parents of children studying in public-aided schools would be provided with online access to the CCTV feed. Subsequently, tenders were floated requesting proposal for supply, installation and commissioning of CCTV system in Delhi government schools, and in November 2019, the heads of all public-aided schools in Delhi were directed to allow and permit the private company who was awarded the tender, to carry out the installation of CCTV cameras in school premises.
Also Read: Delhi High Court defers Delhi Judicial Services Examination
The latest petition against the video recording in Delhi schools is relying on the decision of the apex court in Indian Hotels & Restaurant Association, where it was observed that installation of CCTV cameras in dance bars violated the right to privacy. The petitioners contended that “the right to privacy of students, their teachers and the sensitivities of their parents must be tested on the same constitutional standard adopted in a case concerning the rights of dance-performers”. The plea sought removal of CCTV cameras installed in public-aided schools in Delhi, in addition to destruction of the video data collected and live streamed. Further, the plea sought framing of regulations and the management, processing, protection and storage of data collected from the CCTV cameras installed at permissible places in the school premises.
The petition highlighted three fundamental violations of privacy inherent in the decision. First, the installation of CCTV cameras inside classrooms without obtaining specific consent from either the students, their parents and teachers is a gross and direct violation of the fundamental right to privacy, as held in the nine-judge Constitution bench’s decision in KS Puttaswamy vs Union of India (2017). Such consent must be informed, specific and thus cannot be a one time and all encompassing parental authorization. Second, the act of live streaming footage, without specific consent, is further violation of the fundamental right to privacy. Third, in the complete absence of a data protection regime or any other statutory/regulatory framework to protect citizens’ data, the twin acts of obtaining and then storing children’s data on private computer servers is fraught with danger and is thus also violative of the fundamental right to privacy. This regulatory vacuum does not afford citizens any means of redressal or casts any obligations of reporting instances of data breach on data custodians.
The Delhi Parents Association is a group of parents who are deeply concerned about the safety and privacy of their wards. The Government School Teachers Association, an organization of nearly 40,000 teachers, is equally concerned about, not only their privacy and the preservation of their dignity as guaranteed under Article 21 of the Constitution, but also the violation of their fundamental right to be treated equally with other government servants. That apart, the installation of cameras at their workplace without any specific consent taken from them, would amount to a gross violation of their right to privacy. These infractions are combined with the fact that teachers’ interactions with students shall come under direct scrutiny and shall naturally have a negative effect. The teachers are also concerned about the psychological impact the constant monitoring shall have on the overall development of school children.
Also Read: Delhi High Court disposes of plea against illegal construction in Delhi’s Vikaspuri
Notably, the respondents have not carried out any psychological assessment or research study to gauge the actual effect and the impact upon the minds of children who are constantly under surveillance of the school authorities as well as an indeterminable number of outsiders. Therefore, cabinet decisions and circulars are in direct contravention of the fundamental rights guaranteed under Articles 14, 19(1)(a) and 21 of the Constitution.
Furthermore, the apex court in two recent decisions unequivocally upheld the right to privacy in its many manifestations as an inviolable fundamental right guaranteed under Article 21 of the Constitution. While the judgment in Indian Hotel and Restaurant Association vs The State of Maharashtra directly considered the question as to whether the patrons and performers at bar dance establishments were entitled to an environment without the imposition of CCTV cameras, the Court firmly held that not only were the performers entitled to privacy but even visitors to these establishments needed privacy.
In this judgment, the aspects pertaining to the transgression of personal liberties owing to videography were considered. This judgment relied upon the decision in KS Puttaswamy (supra) to hold that the act’s requirement to install CCTV cameras and retain the dance performance footage for 30 days as wholly unconstitutional. Referring specifically to the rule mandating installation of cameras, the Court held that “(it) would be totally inappropriate and amounts to invasion of privacy and is, thus, violative of Article 14, 19(1)(a) and 21 of the Constitution as held in KS Puttaswamy case.
Also Read: Supreme Court quashes HC order against OLX over frauds committed in Haryana
In the landmark nine-judge Constitution Bench decision, the Court had the occasion to consider in great depth the multiple facets of personal liberty and the protection of personal privacy. Among these, the Court specifically highlighted privacy concerns of children’s data as also the legitimate expectation of solitude in an educational setting. With perfect prescience, the Court contemplated a scenario where the State may misuse technology to intrude upon an individual. These intrusions may be physical or visual, and may take any of the several forms, including peeping over one’s shoulder or eavesdropping directly or through instruments, devices or technological aids.
It was further submitted that in Puttaswamy (supra), the apex court held that “every individual is entitled to perform his actions in private. In other words, they are entitled to be in a state of repose and to work without being disturbed, or otherwise or spied upon. The entitlement of such a condition is not confined only to intimate spaces such as the bedroom or the washroom but goes with the person wherever he is, even in a public place.”
The petition further said that there are no criminal offences or civil penalties in place in case of a data breach or leakage by the third party who is engaged by the respondent to collect, store and process the data generated from CCTV cameras. It was also submitted that the lack of legal framework manifests that not only are the respondents unequipped to manage, control, handle, process and safeguard the mass of data which shall be generated as result of the decision to the install CCTV cameras in the classrooms of children, but in the absence of a statutory framework, the data pool becomes extremely vulnerable.
Also Read: Allahabad High Court disposes of habeas corpus petition filed in Varanasi murder case
The petition mentioned that the instances of sexual abuse of children have increased by over 82% since 2015, and in this backdrop, to provide a live-streaming video of children to the public at large, will make things worse. A continuous live feed will not only allow a predator to prey on his victim but further monitor their movement throughout the day.
The petitioners submitted that Delhi alone has witnessed the highest instance of crime against children, with a total of 8,178 incidents out of which 1,620 were under the POCSO Act and 114 were under Section 377 of the Indian Penal Code, 1860. It was stated that providing a live video feed, which helps in identifying, locating and targeting of potential victims by the predators, will drastically increase the number of offences against children.
—By Adarsh Kumar and India Legal Bureau