Surveillance is a French word that means “to watch over.” It basically means watching over an individual or individuals to keep them safe but also watching over them to ensure that they meet a certain standard of behavior. Conceptually, surveillance both enables and constrains. It is used both to protect and to control. For instance. it is utilized to protect individuals from possible harm of terrorism by monitoring their activities in an unsafe area. Likewise, surveillance is also used to inspect that an offender is not committing a similar crime again upon bail. With the onset of the digital revolution, the ambit of surveillance has started to enlarge. The people from any nook and corner of a country or outside it can be monitored from far-off areas by digital technologies. Moreover, with the pandemic, this monitoring has further increased under the term public health surveillance in order to avert and contain the spread of disease. Surveillance though apparently seems to be the need of the hour to protect the masses, but, its close analysis shows that directly violates the right to privacy. This is because often surveillance techniques are used for witch-hunting, political expediency, targeting marginalized communities, and personal interests. As a consequence, the fundamental right of privacy gets trampled on.
The right to privacy is a human right as it is laid down in the Universal Declaration of Human Rights 1948. Under, Article 12 of the Declaration, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Meaning thereby, the right to privacy is an inviolable right that is available to every human being irrespective of his caste, color, gender, and race, and not any unreasonable interference in the exercise of such right is acceptable. Moreover, in many states’ constitutions as well the right of privacy has been safeguarded as an inherent right. In the fourth amendment of the USA constitution right of privacy is protected against unreasonable searches and seizures by the government and under the fifth amendment, the right against self-incrimination is defended, which justifies the protection of private information. Similarly, in the Indian Constitution Article 21 protects the right of privacy of the citizen against any infringement. The Constitution of Pakistan, 1973 also safeguards the right of privacy under Article 14. Hence, the right to privacy is a basic right of citizens of a state that is guaranteed by almost all of them by their laws.
Nonetheless, the right to privacy though is a fundamental right and a human right but still, it is threatened of violation by the techniques of surveillance that themselves are regulated by laws. For instance, the Patriot Act passed by the US government hastily in the aftermath of the 9/11 attacks was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet. While most Americans think it was created to catch terrorists, the Act actually turns regular citizens into suspects.
In the same way, in Pakistan under the Investigation for Fair Trial Act (2013) and the Prevention of Electronic Crimes Act (2016), certain authorities can monitor the activities of the people that are considered suspicious. But, surveillance based on mere suspicion often tends to violate the rights of those who are already marginalized. However, it is also essential under certain circumstances to apply monitoring techniques with a view to prevent crimes and to protect individuals. For this reason, a need is to strike a balance between two tendencies; a positive conception of surveillance as a necessary means of social control and a negative conception of it as a tool used to constrain liberty and privacy. The same was held in Kharak Singh vs The State Of U. P. & Others on 18 December 1962 that the State must satisfy that the fundamental right is not infringed by showing that there is a law within the meaning of Art. 21( right to privacy) that does not go beyond it. Thus, surveillance is a reality of the present century that cannot be denied owing to its lucrative features but it still has the tendency to infringe the right to privacy. The only way out is to formulate surveillance laws that are not beyond the scope of the right of privacy guaranteed under various constitutions and universal declaration only then the right will be protected and monitoring will be aptly conducted.
