By: Soumya Tiwari

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Nelson Mandela famously said, “[N]o one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” 

In order to uplift the treatment meted out to prisoners, the Indian Supreme Court (hereinafter the ‘SC’) has proactively taken many laudable steps in the direction of prison reforms. In the celebrated case of D K Basu v Union of India, the apex court issued guidelines regarding arrest and detention by the police. In 2015, while reviewing the 1996 guidelines, the Court directed the state governments to install CCTV cameras in all prisons within a year. The court observed that “CCTV cameras will help go a long way in preventing the violation of human rights of those incarcerated in jails. It will also help the authorities in maintaining proper discipline among the inmates and taking corrective measures wherever abuses are noticed.” The court further recommended the installation of CCTV cameras in all police stations.

Cameras existed in prisons earlier too, but they were primarily installed in areas like a mess, exterior walls, towers (so that when the cells are open during the day time, prisoners do not escape), etc. However, in pursuance of this judgment and on their own initiative as well, states like Uttar Pradesh and Delhi have installed CCTV cameras inside the barracks and cells where prisoners live and spend most of their time.

This judgment came two years before privacy was recognised as a fundamental right by SC in the Puttaswamy judgment. However, the question arises as to whether the court’s direction for the installation of cameras in prisons still remains valid after privacy was recognised as a fundamental right under Article 21.

ANALYSIS

The Court has iterated in a catena of judgments that the precious right to life and liberty guaranteed by Article 21 cannot be denied to prisoners, except according to the procedure established by law by placing reasonable restrictions. In Neelabati Bahera v State of Orissa, the apex court has observed that: 

“[t]here 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.” 

In the Puttaswamy judgment, the court laid down three tests to be satisfied by a measure violating privacy to be valid: violation of privacy should be done with the authority of law; for a legitimate aim; and the measure should be necessary and proportional to the objective sought to be achieved.

As the measure of installation of CCTV cameras is directed by the SC itself, the same satisfies the first test of the authority of law (or procedural due process). The second test and the third test require that the measure should be for a legitimate aim, and necessary and proportional (or substantive due process). The main justification behind the installation of CCTV cameras is that it prevents custodial torture and deaths. Other allied reasons are to discipline prisoners, and to detect and prevent smuggling and consumption of drugs, self-harm or suicide, and escape by prisoners.

The last but the most important test that needs to be satisfied for a measure to be valid is that it should be necessary and proportional to the object sought to be achieved. The SC’s direction of installation of CCTV cameras in prisons fails to satisfy the test of necessity and proportionality. Its decision is entirely based on the assumption that the installation of cameras will prevent, and reduce custodial deaths and torture. Nowhere in the judgment, did the court discuss implications of such installation on privacy nor did it give any data protection guidelines for ensuring that the footage is not misused. The court failed to weigh and balance the conflicting interests of privacy and safety. 

Installation of CCTV cameras in barrack and cells is very problematic. It violates the privacy of prisoners. It causes a lot of embarrassment and inconvenience to female inmates. Their CCTV footage becomes a source of entertainment for jail officials, especially in summer where scorching heat and lack of fans and other cooling facility forces female prisoners to wear minimum clothes. In Mumbai’s Byculla prison, installation of CCTV cameras in women barracks was successfully resisted through a hunger strike.

Moreover, installation of CCTV cameras does not prevent custodial death and torture, but only makes conviction easier due to the availability of credible evidence. In most cases, the CCTV footage is not monitored or is monitored by one who is either junior to or an ally of the person committing torture, therefore, no action is taken against the perpetrator. And in case the prisoner himself files a complaint, the authorities manage to shield the perpetrator from the courts on one pretext or the other, with the most common being that the camera was not functioning at the relevant time. Similarly, most of the times, smuggling of drugs in prisons takes place with the involvement or knowledge of the officials, and therefore, CCTV cameras would serve only as ornamental objects.

In its Report for Suicide Prevention in Prison (2014), National Human Rights Commission observed that CCTV monitoring does not prevent suicides, but only identifies a suicide attempt in progress. The report recommended that if utilised, CCTV monitoring should only supplement the physical observation by staff. However, it did recommend constant CCTV monitoring for ‘high risk-prone’ inmates.

Findings of a study reveal that CCTV fails to reduce violent crimes because of the spontaneous nature of such violence. CCTV has a greater effect on non-violent than on a violent prisoner’s misbehaviour, although, it did have an effect on planned violent assaults. Another study of UK Prison showed that the presence of CCTV cameras in cells creates an untenable atmosphere of constant suspicion, paranoia, and self-conscious reflection leading prisoners to subdue and lose touch with their identities. Every action of a prisoner becomes strategic and self-protective in this ‘fake environment’, and prisoners perceive even the smallest acts like laughing as risky.

India’s international obligations also mandate it to respect the rights of prisoners. Article 10 of the International Covenant on Civil and Political Rights, 1966 states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Similarly, Article 5 of Universal Declaration of Human Rights, 1948 outlaws inhuman or degrading treatment or punishment.

Rule 50 and 51 of the United Nations Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules) also lays emphasis on the privacy and the dignity of prisoners while searches. Rule 36 says that discipline and order shall be maintained with no more restriction than is necessary to ensure safe custody, the secure operation of the prison and well-ordered community life.

United Nations Office on Drugs and Crime has also acknowledged in its Handbook on Dynamic Security and Prison Intelligence that physical aids to security such as cameras, monitoring and alarm systems by definition intrude on personal privacy. It recommended that while making decisions about where they have to be placed, a balance should be struck between legitimate security requirements and the obligation to respect individual privacy.

Recently, the European Court of Human Rights also ruled against Russia for permanent monitoring of prisoners, more so without a proper legal framework to protect them from arbitrary interference from prison authorities.

CONCLUSION AND RECOMMENDATIONS

The court cannot through the installation of CCTV cameras on one hand protect the right to life and personal liberty of prisoners by preventing custodial torture and deaths, and on the other hand, violate the same rights by denuding them of their basic right to privacy and dignity. The recommendation for installation of CCTV cameras in all police stations is more effective than in prisons because police stations and lockups, therein, are a hotbed of custodial torture and deaths, as the interaction between the police and the prisoner is the highest there. Therefore, Gujarat and the Madras High Court have issued orders to get cameras installed in all police stations. Further, as prisoners stay in these lockups for a limited time ranging from few hours to few days, the privacy concern is also limited.

This is not to say that cameras should not be installed in prisons at all. Cameras can be installed in common areas like corridors, but not in barracks and cells. Other creative options can also be considered to balance the safety of prisoners with privacy. The prison authorities should have a video and an audio recording of the planned or anticipated use of force, from the initiation of the action to the end, and should try to record other incidents of violence, which were not anticipatory, as soon as possible. CCTV cameras, if at all need to be installed inside barracks and cells, shall not be activated until an alarm button is pressed, either by the prisoner or someone from the prison authority, on happening of an event that warrants recording. Strict guidelines shall be laid for pressing an alarm button and recording by CCTV cameras. So that they are used only when it is absolutely necessary. Further, installation of CCTV cameras can be considered on a case to case basis for exceptionally dangerous prisoners who are kept separately.

SC needs to review its direction of installation of cameras in prisons, in view of the Puttaswamy judgment, and weigh and balance the conflicting interests of privacy and safety of prisoners, and give specific guidelines for data protection. Guidelines for data protection are very important because the present Sensitive Personal Data or Information Rules do not apply to non-commercial entities like jails and prisons, and a comprehensive data protection law is still not in place. Moreover, any prospective data protection law is also not likely to ameliorate the situation since, broad exceptions are usually carved therein for actions undertaken in pursuance of court orders ( the proposed Personal Data Protection Bill, 2019  section 12(c) (hereinafter ‘PDP Bill’)]. Under the PDP Bill, the Central Government has also been granted wide powers to exempt certain entities from the data protection obligations in the interest of public order and national security.

In Shafhi Mohammad v The State of Himachal Pradesh, SC ordered for the establishment of Central Oversight Body (hereinafter ‘COB’) with Ministry of Home Affairs for the implementation of the facility for videography of crimes scenes in a phased manner, and also required COB to issue instructions for study of CCTV camera footages of prisons and police stations, and periodically publish a report of its observations. This opportunity should be utilised by COB to analyse the effectiveness of CCTV cameras installed in prisons and police stations in achieving their objectives. So that, evidence-based and rights-oriented policy can be framed in this regard. 

We should also not lose sight of the fact, that though CCTV cameras are purportedly installed for the ‘benefit’ of prisoners, they act as instruments of what Michel Foucault describes as ‘disciplinary power’; a power that “is exercised through its invisibility” and imposes on its “subjects a principle of compulsory visibility.” This imposition of disciplinary power accompanied by “surveillance for benefit” model needs urgent review because it is no longer limited to prisons but is rapidly being replicated everywhere. Foucault had rightly warned us, “Is it surprising that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?”

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(Soumya is currently a law undergraduate at Rajiv Gandhi National University of Law, Punjab. She may be contacted via mail at soumyatiwari@rgnul.ac.in.)

Cite as: Soumya Tiwari, ‘No Privacy for Prisoners in India’ (The RMLNLU Law Review Blog, 01 August 2020) <https://rmlnlulawreview.wordpress.com/2020/08/01/no-privacy-for-prisoners-in-india > date of access.