Right to Privacy cannot be superseded by suspicion of police: Madras High Court on installation of CCTV in clubs

The Madras High Court recently rejected a request by the police to install CCTV cameras inside all areas of two clubs/recreation centres with a view to keeping a tab on gambling and other illegal activities [MM Nagar Sports & Recreation Centre and Another v. The Superintendent of Police, Kancheepuram District and Ors]..Justice Krishnan Ramasamy observed that passing such directions would be violative of the right to privacy of all other members and visitors in the clubs. The order stated,"To cast a doubt on every single person entering the club thinking that they might commit an offence and subject them to complete CCTV Surveillance does not have any rational or objective basis. To brand the every single person entering a club capable of committing an offence of gaming for profit/betting/wagering is indicative of the narrow and archaic mindset of the Police...To take a stand that right to privacy must be superseded by suspicion of the Police is certainly untenable.".However, in order to allow the police to keep tabs on potentially illegal activities, the Court directed the club owners to install CCTV cameras at the entry and exit of the clubs as well as in areas where games are played by the members..The Court made these observations in petitions filed by club owners in Kanchipuram and Chennai seeking to restrain the police from frequently entering the premises and conducting raids under the pretext of having information that the members of the clubs were indulging in illegal gaming activities..The petitioners argued that the actions of the police were in violation of the safeguards accorded to citizens under Section 5 of the Tamil Nadu Gambling Act, 1930. As per this provision, a judicial magistrate or any police officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police who has a "reason to believe" that any place is used as a common gaming house can give authority to any police officer not below the rank of Sub-Inspector, to enter and search, and arrest all persons found therein..When the matter came up for consideration earlier, the Court noted that the constant presence of the police in the club would inconvenience the members. In order to strike a balance, the Court suggested placing a CCTV camera at the entrance of the club without affecting the privacy of the club members. The Court impleaded the Director General of Police (DGP) as a party to the proceedings and ordered him to file a report.The report submitted by the DGP suggested that CCTVs be installed in all places, including the playing area and corridors, except the restrooms since the offence of gambling takes place in these areas.The petitioners responded that merely on the apprehension that gambling activities may take place, the police cannot be permitted to conduct surveillance of entire activities in club/recreation centres. They argued that this clearly infringes the right to privacy of members of clubs/recreation centres..The Court agreed with the petitioners and noted that such surveillance by the police was quite disturbing. "It is trite in law that suspicion howsoever strong it may be cannot take the place of proof. But the view taken by the 5th Respondent that since they suspect that gambling or gaming by wagering/betting can take place in any part of the club and therefore CCTV cameras have to installed in all areas of the entire club seems to only indicate the doubting Thomas mindset of the Police," it held.Referring to the Supreme Court judgments in Kharak Singh v. State of UP Justice KS Puttaswamy & Anr vs Union of India & Ors, in which the right to privacy was declared a fundamental right, the Court noted,“When a person becomes a member of a club and intends to spend time in the club's premises to relax or unwind with friends and family, he/she expects that his private space is not intruded. To tell him that all acts of his whether playing or swimming or walking or eating or drinking would all be under the scrutinising gaze of the policemen through the CCTV’s that can be accessed anytime would not only make his right to privacy redundant but also offend and deprive his cherished right for the sake of an alleged offender who might be playing games for money or betting or wagering.”.The Court went on to observe that Victorian era legislation like the Tamil Nadu Gaming Act or the Public Gambling Act have not been updated with the changing times."As the Courts have repeatedly held that law has to adapt itself to the changing social and societal needs, the Tamil Nadu Gaming Act or the Public Gambling Act are legislations of the Victorian era which have not completely adopted with new amendments from time to time. Those days there were exclusive gambling dens or gaming houses where even innocent people visited and lost huge monies leading to devastating effects on them and their family. But now this concept of gaming houses or gambling dens is not present and only in a few clubs which are under the control of suspicious and unethical elements, gambling takes place.".On these grounds and others, the Court held that the DGP's suggestion that CCTV cameras be installed in all areas of the club, was untenable..It, however, passed the following directions, among others:- Petitioners shall install CCTV cameras, at the places of entry and exit of the club and areas where games are played by the members. - Petitioner shall not permit members to play game with stakes inside the club premises.- No police officer can straightway walk into a club, make a raid and search without reason to believe that such place is used as gaming-house;- Police shall endeavour to the maximum extent not to enter the club premises unnecessarily thereby causing inconvenience to other members and get all information using the details available in the CCTV footages.- Police shall not attempt to access footage that infringes the right to privacy of other members who are in no way connected or involved.- This order would not come in the way of the jurisdictional police invoking the relevant provisions of the Act and taking action in accordance with law, if the member(s) of the clubs are found to have indulged in any unlawful or immoral activities..Advocate KMD Muhilan appeared for the petitioners, while Special Government Pleader M Shahjahan represented the State..[Read order]