Should Person under Surveillance have same Rights ?

 

 

Context :

Accused has the right to seek documents gathered during investigation: HC    …  HT / 15 Dec 2023

Extract :

The Bombay High Court ruled that an accused person has the right to access any materials or documents gathered during an investigation, even if they are not included in the chargesheet.

The court stated that these documents could potentially prove the accused's innocence and should be made available to them.

The court stated that this is because the documents collected during the investigation could be potentially exculpatory and could cause serious prejudice if not made available to the accused.

“Once the accused is aware that any material/documents collected during the investigation which has the potential of absolving him of the guilt and which is made known to him through the list of documents, exhibits, etc. furnished in terms of the explanation to Rule 4 of the Draft Rules, then the accused is entitled to seek those documents through an application under Section 91 of the Code”, the court said.

A bench of justice Bharti Dangre, while upholding the rights of the accused, directed the sessions court to ensure that the material and documents provided by the accused himself should be produced before the court.

Justice Dangre accepted his contentions and noted that the police are bound by Rule 4 of the Draft Guidelines under the Criminal Procedure Code approved by the Apex Court, which mandates that a list of documents collected during the investigation of a crime but not intended to be relied on by the investigative officer, be furnished to the court.

“Once such a list is furnished, it is the right of the accused to seek production of the documents provided in the list,” the court said and directed the sessions court to seek the documents from the investigating officer, “as the documents are necessary and desirable for the trial, which is exculpatory in nature and would enable the accuse to prove his innocence, though it is at the stage of framing of charge, as this will assure him, fairness in the trial.”

 

 

My  Take :

 

Ø  Who watches the Watchmen ?  …………………………… 12 Jan 2019

 

Extract :

#   SURVEILLANCE   REQUEST   SECTION

 

Any agency wanting to conduct surveillance of online / offline activities of an Indian Citizen , shall submit its’  requirement in this section

 

This shall contain details such as :

·         Name of the agency

·         What activity of the citizen is proposed to be surveyed and for how long

[  Multiple selection from the following  ] :

#   Visits and postings on Social Media web sites

#   Visits and searches on E Commerce web sites

#   Searches on Search Engines  /  All digital traffic ( including thru Alexa / Google

     Home type devices )

#   Messages sent / received on Messaging Apps /  E Mail services

#   Records of Digital Payment Transactions on Banking / FinTech Network

#   Audio logs from Landline and Mobile Service Providers for telephonic talks…etc

 

Agency will also need to specify the PURPOSE of the proposed surveillance , by selecting one or more of the following suspected reasons ( list is not comprehensive ) :

·         Tax Evasion  /  Money Laundering

·         Criminal Activity  /   Militancy

·         Fraud  /  Breach of Trust

·         Anti-National Activity  /  Sedition  /  Treason

·         Fake News / Pornographic content posting

·         Speeches / articles likely to create enmity among people

 

Such a request shall need Online Authorization of , all of the following officers :

#   Chief of Agency concerned

#   Secretary ( Cyber Security ) – Ministry of Information Technology

#   Data Protection Regulator

 

As soon as such a request is “ Approved / Authorised “ , an email ALERT will go out automatically ( without any human intervention ) to the citizen concerned that she is “ under surveillance “ .

 

This will ensure that there is NO SECRET surveillance !

 

Copies of this E Mail ALERT will also get sent to all other Intelligence Agencies for a coordinated effort and for avoiding duplication

  

#     SURVEILLANCE  HISTORY  SECTION

 

         At any time of his choice , concerned citizen can login at this section                     and see WHICH Agency surveyed her and for how long

           

  #      But the citizen concerned will NOT be able to see following entries by the              Agency :

   #     What was the PURPOSE / REASON for the surveillance

  #      WHAT DATA  got collected

   #     FINDINGS  and proposed  COURSE of ACTION , if any

 

This part will be visible to all other Intelligence Agencies , who will have facility to add their own information / data about the concerned citizen which is in their possession , in order to compile a COMPREHENSIVE  DOSSIER about that citizen .

 

However, these other Agencies will NOT be able to EDIT any ENTRIES / FINDINGS of any other agencies

 

ALTHOUGH THESE ENTRIES ARE NOT ACCESSIBLE TO THE CONCERNED CITIZEN IN A NORMAL COURSE , THE SAME SHALL BE MADE AVAILABLE TO HER IN CASE ANY GOVERNMENT AGENCY RELIES UPON THESE DURING A COURT CASE AGAINST THAT CITIZEN , ARISING FROM SUCH SURVEILLANCE

 

My proposal,

#  Gives a free hand to the Agencies to proceed with their investigations, without      needing PRIOR PERMISSION,

    And

#  Ensure total TRANSPARENCY of their surveillance activities to the persons being

    investigated

 

This will assure the ordinary citizens (– and also “ vulnerable “ citizens such as politicians belonging to opposition parties ? )– that they are not being snooped upon secretly !

 

With regards,

Hemen Parekh

www.hemenparekh.ai  /  20 Dec 2023

 

Following are comments by ChatGPT on my suggestion :

Rights of an Accused Person:

·         Access to Investigative Materials: Bombay High Court ruled that an accused person has the right to access materials gathered during the investigation, even if not included in the charge-sheet.

·         Purpose: These materials could potentially prove innocence and should be available to prevent prejudice against the accused.

·         Legal Mandate: Court directives ensure that materials provided by the accused should be produced before the court, and the police are bound by guidelines to furnish a list of documents collected during the investigation not intended to be relied upon.

·         Procedural Fairness: This access, even at the framing of charges, assures fairness in the trial process.

Rights of Persons under Surveillance (as proposed by Hemen Parekh):

·         Surveillance Request Section: Agencies need to submit detailed requests for surveillance specifying the nature, purpose, and duration of surveillance activities.

·         Authorization Process: Requires online authorization from higher officials in relevant agencies to ensure oversight and prevent secret surveillance.

·         Notification to the Individual: Automatic email alerts are sent to the individual under surveillance, ensuring transparency and eliminating secret surveillance.

·         Access to Surveillance History: Individuals can log in to see which agency surveilled them and for how long, ensuring they are aware of being under surveillance.

·         Access Restrictions: Certain information, including the purpose, collected data, findings, and proposed course of action, is restricted from the individual but available to other intelligence agencies and made available if used in a court case.

Comparative Insights:

Aspect	Accused Person Rights	Rights of Persons under Surveillance (as proposed by Hemen Parekh)
Access to Information	Access to investigative materials even beyond chargesheet	Limited access; certain information withheld from individual but accessible in legal proceedings
Notification	Information provided during legal process	Automatic email alerts; no secret surveillance
Purpose & Transparency	Ensuring fairness in trial process	Transparency and oversight in surveillance; restricted access to certain sensitive information
Oversight & Authorization	Bound by legal guidelines	Higher-level online authorization; coordinated efforts among agencies

Comparison Summary:

The proposed rights for persons under surveillance, as suggested by Hemen Parekh, focus on ensuring transparency, oversight, and notification for individuals being surveilled, with some limitations on direct access to sensitive information. This stands in contrast to the rights accorded to an accused individual during legal proceedings.

This proposed suggestion aims to strike a balance between the necessity of surveillance for security purposes and the protection of individual rights, offering a compromise that ensures transparency while withholding certain sensitive information.

 

 

And here is what  BARD had to say :

Your blog raises a complex and important question about the balance between national security and individual rights in the context of state surveillance. Comparing the rights of an accused person to those of a person under surveillance is not straightforward, as their situations and legal frameworks differ significantly. Here's a breakdown of the key points:

Accused Persons:

·         Presumption of innocence: In a criminal justice system, an accused person is presumed innocent until proven guilty. This principle guarantees certain rights, such as the right to a fair trial, legal representation, and access to evidence.

·         Right to know the charges: An accused person has the right to know the specific charges against them, allowing them to prepare their defense.

·         Right to confront accusers: The accused has the right to challenge the evidence against them and confront their accusers in court.

·         Due process: The law must be followed fairly and consistently in all criminal proceedings.

Persons Under Surveillance:

·         Suspicion, not accusation: Surveillance typically occurs based on suspicion of wrongdoing, not confirmed evidence. This distinction weakens the justification for granting full rights as in a criminal case.

·         National security concerns: Balancing individual rights with national security interests can be a complex task. Unrestricted access to surveillance information by individuals under investigation could compromise ongoing operations or sources.

·         Potential for abuse: Unchecked surveillance powers can lead to abuse of individual rights, especially for vulnerable groups. Safeguards and oversight mechanisms are crucial to mitigate this risk.

Comparative Tabulation:

Feature	Accused Person	Person Under Surveillance
Legal basis	Criminal law	National security law
Status	Presumed innocent	Suspected of wrongdoing
Rights to information	Full access to charges and evidence	Limited or no access to surveillance details
Right to confront accusers	Yes	Typically not
Due process	Strict legal procedures	Balancing individual rights with national security concerns

International Practices:

Several countries have implemented legal frameworks for surveillance activities, with varying degrees of transparency and accountability. Some examples include:

·         United Kingdom: The Investigatory Powers Act 2016 provides for judicial oversight of certain surveillance programs, but concerns remain about its effectiveness.

·         Germany: The Federal Intelligence Service Act requires parliamentary oversight of surveillance activities and grants limited rights to individuals under investigation.

·         India: The Right to Privacy judgment by the Supreme Court in 2017 recognized privacy as a fundamental right and called for a robust legal framework for surveillance. However, a comprehensive legal framework is still under development.

Conclusion:

The application of "natural justice" principles to persons under surveillance requires careful consideration of the competing interests of individual rights and national security. While full rights as granted to accused persons may not be feasible, some level of transparency, accountability, and safeguards against abuse are crucial to protect individuals from arbitrary surveillance. The specific details of such safeguards will depend on the legal and political context of each country.

Your blog proposal raises interesting ideas for increased transparency in surveillance activities while protecting sensitive information. Further research and public discussion are necessary to develop effective and balanced solutions for this complex issue.