Delhi: A study of 5,400 orders passed under a law that gives the state emergency powers to maintain law and order reveals it is being used to coerce citizens into installing CCTV cameras and regulating businesses, in effect involving private actors to expand “warrantless surveillance” in the national capital.
Four independent researchers, backed by the US-based Thakur Foundation, studied how section 144 of the Criminal Procedure Code, 1973 was deployed in Delhi between January 2021 and January 2022.
The purpose for which 144 is cited most often—prohibiting more than five people from gathering—constitutes only 1.5% of the orders, which were received through right-to-information (RTI) applications filed in police stations in Delhi by the researchers.
The study, The Use And Misuse Of Section 144 CrPC, showed that 25.6% of the orders were for installing closed-circuit television cameras (CCTVs), 43% for regulating businesses through record and registration requirements, 16.4% about COVID-19, and 1.5% restricting unlawful assembly. Other orders for maintaining public order included regulating kite flying, firecrackers and hookah bars.
The study noted that Delhi was one of the most pervasively surveilled cities in the world, with more than 275,000 CCTVs installed by the government of Aam Aadmi Party, led by chief minister Arvind Kejriwal, who, in December 2021, said Delhi ranked number one globally in terms of CCTV coverage.
The chief minister said that after installing 140,000 lakh cameras to the existing tally of 275,000, Delhi would have 415,000 lakh CCTV cameras.
The Delhi police is under the central home ministry presently under the Bharatiya Janata Party.
Delhi is divided into 18 districts, and each district issued an average of 77 CCTV installation orders—the highest (156) in the northeast district, said the study.
The researchers wrote that the police in the south and southeast districts allowed a physical inspection of the orders in response to their RTIs, but they did not provide copies and rejected a follow-up RTI request.
The researchers wrote that section 144 was used to “regulate various activities which are often not under any direct legislative supervision” instead of addressing public order emergencies. The orders were “perpetually re-issued”, which combinedly “normalise a set of extraordinary legal measures that are ex facie contrary to the fundamental freedoms secured by the Constitution”.
The researchers wrote that section 144 did not contemplate “the imposition of positive obligations” that go beyond redressing a public emergency but are being used by the police for “preemptive steps to minimise the risk of crime”.
“A spate of the orders we reviewed were not addressing any developing emergency within the city,” said the report. “Rather, the logic was to link certain kinds of business or everyday activities with elements of risk and potential criminality and to use that link for allowing pervasive police presence and justifying the imposition of measures which, in the minds of the authority would mitigate against these risks.”
Private Actors ‘Co-opted’ In State Surveillance
The use of section 144 to install CCTV was problematic for many reasons, including coercing private citizens to collect data, there was no legal basis for such an order, it was a violation of the right to privacy, and the lack of procedural safeguards about the storage and sharing of personal data.
The section 144 order included the CCTV installation in ATMs, banks, private locker companies, liquor vendors, private courier services and agents, owners of parking lots, money changers, hotels/motels/guest houses/dharamshalas, amusement parks, cinema halls, jewellery shops, petrol pumps, malls, restaurants, wine and beer shops, restaurants, shopping complexes and banquet halls.
The highest number of orders were for CCTVs to be installed inside and outside NBFCs (Non-Banking Financial Company), courier operators, girls’ schools and PGs.
The study said that “state surveillance is being supplemented by a vast parallel network of private actors being asked to install CCTVs…”
“In effect, we have with us a set up where Big Brother is always watching, whether we are watching a movie with a friend or sending a package to a loved one,” the researchers wrote.
They noted that the issue of “private actors tacitly co-opted to the state surveillance apparatus” had “mostly flown under the radar”.
“As a result, we have a patchwork of surveillance measures deployed (i) by the state directly, and (ii) through private actors at the instance of the state, with no clarity on how they interact with each other, and without any discussion or debate,” they wrote.
The orders directed owners to preserve footage and hand over footage to the police when required or demanded. They ordered checking footage at the beginning of each working day in case of liquor vendors, informing the police of illegal drinking in public. There were orders directing private courier services and agents to monitor anyone who booked a courier and preserve the footage when demanded.
“These orders have, in effect, created a panoptic state where you may be surveilled going to college, withdrawing money at a bank, sending a package to a loved one, going to a restaurant with family, watching a movie with a friend, and even while filling gas at a petrol pump,” the report said.
“No Legal Basis” For CCTV Orders
“While public safety may be a legitimate aim, the aforesaid directions issued under Section 144, CrPC to install CCTV cameras fails the test of proportionality. There is no legal basis to authorise the installation of CCTV cameras. Section 144 permits only a restrictive order—it does not authorise a Magistrate to make a positive or mandatory order directing a particular act, such as installation of CCTVs,” the report said.
“Even otherwise, such directions seem to fall foul of the Supreme Court’s repeated interdictions that Section 144 must only be used to prevent immediate harm. Thus, even on the face of it, the directions to install CCTV cameras are contrary to Section 144, CrPC,” it said.
Researchers also asked whether CCTV was effective in controlling crime given that many studies find no correlation between the two and the footage is only looked at in the investigation stage. They asked about its impact on the right to privacy when in 2018 the Supreme Court in K.S. Puttaswamy vs Union of India said privacy is not surrendered in public places.
“When we visit a cinema hall, for example, we expect to be noticed by those around us. We do not, however, expect to be stared at intently and scrutinised by ‘unobservable observers’ unless we are doing something out of the ordinary,” the report said.
‘Warrantless Surveillance’: Observations From The Report
The report raised the following issues regarding installing CCTV cameras via section 144: the lack of procedural safeguards, no link to an active investigation is needed, normalising the deployment of surveillance tools and its impact on privacy, and warrantless surveillance by citizens for the state.
“The biggest problem with deploying CCTV through Section 144 orders is the lack of procedural safeguards. The orders do not prescribe any safeguards to regulate the use, storage, sharing, and deletion of sensitive personal data. If anything, the orders either allow the police to take data as and when they deem fit or impose a further obligation on private actors to hand over the recordings themselves to the police (sometimes even on a daily basis as in the case of liquor vendors in North West and Rohini districts).”
“A link with any active case or investigation is not required, and what we have with us is a setup where Big Brother is always watching.
In effect, through the threat of penal sanctions, under grounds of ‘emergency’, the Section 144 orders force private individuals/organisations to collect more data than they would on their own. This results in the citizens being subjected to surveillance that is wider, covering a larger section of society, and deeper, being more invasive.”
“Section 144 orders have normalised the deployment of surveillance tools and shifted the goal post about the acceptable levels of intrusion by the Government and private actors into the private lives of citizens. Over a longer time period, it can hasten a shift in privacy norms and, further, increase the asymmetry in power between the citizen and the state/private entities.”
“In this manner, deployment of CCTVs through Section 144 amounts to warrantless surveillance carried out by private parties at the behest of the state.”
Regulating Businesses
In addition to coercing private citizens to install CCTV cameras, section 144 is used to regulate businesses through record and registration requirements, including “directives to maintain a record of employee, visitors, customers compulsorily; and follow stipulated procedures, such as KYC (know your customer) norms prescribed by the RBI (Reserve Bank of India) etc”.
“The common thread in these orders is an assumption that all the services in question—renting a room, taking a temporary job, sending a parcel, using a cyber cafe, buying a SIM card, dealing in second-hand goods—carry a grave risk to the maintenance of law and order and are used often enough by criminal elements to justify the pre-emotive invocation of extraordinary powers under section 144, CrPC,” the report said.
The highest number of orders (3,552) were issued to mandate landlords/property owners/factory owners to furnish details regarding tenants/labourers/servants before providing them with accommodation; ATMs and bank branches to maintain a database of all employees, security guards, cab drivers, etc; to follow the KYC procedures prescribed by the RBI; to keep digital records of all visitors; and to deploy armed security guards, etc.
There were similar orders for security measures, including surveillance of employees, visitors and customers to owners of parking lots, money changers, courier companies, hotels, landlords, call centres, corporate houses, media houses, vehicle dealers, mobile sellers, second-hand mobile orders, scrap vendors, and cyber cafe operators.
Orders directing cyber cafe operators, for instance, were “to maintain a register and record of visitors, establish the identity of the visitor, click photographs of visitors on a “continuous basis” and preserve the activity server log for a stipulated period. The orders also prevent entry of visitors whose identity has not been established by the owner of the cafe”.
Public Order
On public order, 81 orders were imposed a blanket restriction on unlawful assembly, while 302 were issued to prohibit the flying of hot air balloons, UAVs, and UASs, 157 were to prohibit pan shops near educational institutes and to prohibit the issue of “special” or “metallic” manjhas to fly kites.
The report said that Section 144 was used to prohibit any act which is likely to disturb public tranquillity, but these orders don’t meet the Section 144 preconditions that justify invocating an extraordinary, speedy remedy involving serious curtailment of civil liberties.
“Section 144 has become a convenient and limitless tool to theoretically control everyday life,” the researchers wrote, raising this point several times in the report.
The researchers said some orders “were so peculiar” that they could not be listed in any category.
For instance, orders prohibiting medical store owners from selling drugs without a doctor’s prescription due to an increase in consumption of Corex, Iodex, solution, and Advil injections, and orders prohibiting the consumption of tobaccos in hookah bars.
‘Cyclostyled Orders’ Conferring Extraordinary Powers
The study found orders were reissued when they expired at the end of the two-month limit, even when the cause behind the order did not exist.
“On display,” the report said, “was a city-wide mechanical process of issuing cyclostyled orders to sustain the legal regime under which the concerned authorities assumed extraordinary powers. Therefore, time limits, though essential to the conception of section 144, are being ignored by the police.”
The study said section 144 imposed positive obligations akin to regulatory compliance regimes installed through subordinate legislation. For instance, an employer is directed to create a surveillance framework for her employees or the general public to preempt future offences.
“Creating a legal obligation envisages notice, fair comment, the ability to contest, and most important of all, democratic representation and none of these are present in criminalisation through section 144. The result is conferring extraordinary powers to the police to suspend civil liberties in the interest of maintaining public order,” the researchers wrote.
Researchers concluded that section 144 in Delhi “demonstrates the normalisation of an extraordinary law to fundamentally transform the very basis of life in the Republic. We may not realise it, but at almost every juncture in life in New Delhi brings citizens into contact with prohibitory orders under section 144 in some shape or form.”
(Betwa Sharma is managing editor of Article 14.)
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