by Adithya Anil Variath 3 July 2021
Introduction
In the police state that George Orwell warned against in the country of Oceania in 1984, he wrote: “There was no way of knowing whether you were being watched at any given moment…that every sound you made was overheard, and…every movement scrutinized”. The outbreak of COVID-19 and the response of criminal justice system across the world has shown how state security strcutures have adopted new technology to trespass the sacred privacies of life. COVID -19 is having an unprecedented effect on models of crime as well as models of administration of law.
The outbreak of COVID-19 has precipitated temporary, but significant changes in the administration of justice. The reactive steps like lockdowns and restricted movements have disproportionately affected the most vulnerable amongst the vulnerable. Criminal justice, law enforcement and criminal procedural law are shifting the institutional structures as a response to enterprising and reactive policies adopted by legal systems to contain the spread of the pandemic.
The role of criminal justice institutions, as enforcers of law and order to tackle the pandemic, becomes crucial with unprecedented challenges to governance and administration systems. While the criminal justice system is restructuring its current sub-structures, with new institutional measures like reactive prison reforms, incarceration policies, detention rules, surveillance and policing, the administration of justice demand compliance to constitutional values and human rights, to respond to the challenges posed by the pandemic.
The systemic approaches adopted by the States amid the crisis has resulted in the deployment of artificial intelligence-based drones and geolocation tracking technologies. This administrative efficiency and tech-monitored policing as the ‘new normal’ come at the cost of restrained civil liberties and cramped individual autonomy. However, both ‘surveillance’ and ‘policing’ are closely interlinked with the criminal justice system in an Orwellian State. As states are moving towards systemic surveillance, it is possible to monitor societal threats using institutionalized geo-tracking technologies.
The worldwide lockdowns have given rise to a dual quandary for the State in terms of law enforcement practices. As police forces are required to ensure that citizens do not violate lockdown norms, they are also required to monitor activities of criminal groups. As both these issues relate to different sections of the society, authorities are required to ensure systematic apportionment of enforcement resources. In India, perennial lockdowns with institutionalized restrictions have seen the extensive deployment of police forces and excessive policing.
This was followed by the deployment of artificial intelligence-based surveillance at the technological level, and excessive policing at the grassroots level. From a social impact assessment, this reflects the modernization of the Indian criminal justice system, however, this approach of criminal law to regulate and monitor reflects the ineffaceable idea of ‘power’ rather than ‘justice’. The Indian criminal law ecosystem and justice administration systems continue to revolve around the ‘culture of control’. AI-based reforms are also expected to entrench this culture.
Proportionate use of artificial intelligence tools can replace human cognitive skills in criminal justice and administration. However, unwarranted surveillance and targeted policing measures are an obscured dilemma of the pandemic. In December 2018, Ministry of Home Affairs, Government of India released a government notification en passant, ten government agencies to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource, such as social media.
The complexity of means of justice in an Orwellian State comes from the normative content that follows. There is a need to rethink how an Orwellian criminal justice administration and a normative framework of surveillance can affect the discourse of criminalization leading to massive increase in state control amid the outbreak of the pandemic. This also questions the moral philosophy of the criminal justice system, whether an unjust measure can be applied for a just outcome?
Orwellian-ism, incarceration policy and e-surveillance
Justice systems across the globe have reformulated the incarceration policy. India, too, has adopted systemic release of prisoners. Inherently, Indian prisons are over-crowded with inadequate healthcare facilities. Considering the fact that Indian prisons are at high risk of becoming epicentres for the spread disease, the Supreme Court in its order dated 23 March 2020 In re: the contagion of Covid 19 virus in prisons directed measures to all states and union territories to constitute a High-Powered Committee to determine the categories of prisoners to be released on interim bail/ parole or furlough to reduce overcrowding in prisons.
The peculiarity of this action also mandates surveillance to monitor and track the movements of these individuals. The idea of normalisation of AI-empowered tracking system has been reflected in the case of the State (NCT of Delhi) v Sanjeev Kumar Chawla. In Puttaswamy case (Justice KS Puttaswamy (Retd) and Anr v Union of India And Ors 2017), the Supreme Court of India, set a landmark precedent by observing that there should be an established procedure, the use of such surveillance should be limited, authorized and used only when the requirement passes the test of the procedural guarantees.
Lack of a tech-oriented criminal justice ecosystem makes the implementation of AI-based surveillance challenging in the Indian context. A tech oriented system would entail institutional capacity to accommodate polysemic approaches to technologies. There is a need to design solutions that are evolutionary. Another area of concern is the legislative lethargy to regulate this process, like the absence of any proper regulatory framework to govern personal/non-personal data. In India, section 72 of the Information Technology Act 2000 safeguards the confidentiality of the data obtained by law enforcement agencies and penalises unauthorized disclosure. It stipulates that surveillance should not be indiscriminate and targeted for minimum possible interception for a minimum possible time which can serve the purpose.
The government has set up surveillance and intelligence sharing institutions like the National Intelligence Grid (‘NATGRID’) and the Crime and Criminal Tracking Network & System (‘CCTNS’). This has created a normative panopticon structure of institutionalized surveillance. India’s modern privacy jurisprudence provides a list of reasons, such as national security, for which states can compromise privacy.
India’ rate of incarceration with disproportionate representation of vulnerable minorities also represents a vulnerable sociological picture of the scale of state punishment and the extent to which a society is punitive. The policies implemented by our criminal justice system and the judicial process before the quantification of the punishment exacts a terrible toll both on its victims and on society. The collective tendency of the society to undervalue probation and parole when assessing the magnitude of punishment reflects how the Indian justice system has accustomed to punitive policies. The number of individuals under the control and supervision of the criminal justice system is growing rapidly, it also exposes the helplessness of law enforcement machinery and criminal justice system natural tendency to over-criminalize.
Policing, Artificial Intelligence and the Judicial System
During the phase of lockdown, several questions were raised on the accountability of State machinery due to rampant police misconduct. While excessive surveillance via drones and CCTVs was imperceptible, discernible issues range from law enforcers found deviating from, abusing or violating established procedures and principles governing lockdown management. The criminal justice system has to redefine the legitimate use of force, arrest, detention and surveillance. This can be done by emphaising on the principle of proportionality and legitimicacy of the need to do so.
During this period, the Indian judicial system has institutionalized the use of technology in its working. There has been a long demand to establish a citizen-centric virtual court system in India. The American judicial systems have employed artificial intelligence in the form of The Correctional Offender Management Profiling for Alternative Sanctions (‘COMPAS’) to sentence criminals.The virtual procedure minimizes cost and promotes transparency.
From e-surveillance during probations, to use of technology in an identification parade, and use of online technology for search and seizure and storage of crime scene data, AI-based technologies can connect large scale database of criminal records to punish repeat offenders. Globally, criminal justice administration is adopting predictive technologies to identify repeaters using artificial psychological assistance, technology can radically shift the working of the criminal justice system in India. However, the application of technologies has to be proportionate and legitimate. This would require a strong collaborative effort from all stakeholders in the system to devise a reformative roadmap.
Conclusion
The current Indian criminal justice system perpetuates colonial shades based on control and order, a character representative of an Orwellian surveillance state. The authoritarian features in the present Indian justice system are destructive of the rule of law and it undermines the principle of legality. While the last few decades in Indian criminal law policymaking was a phase of reformation, however, the outbreak of COVID-19 has exposed systemic institutional failures and confronted new challenges in the justice system. Indian criminal justice system has to adopt principles of the rule of law and accountability to internalize social norms.
(Adithya Anil Variath is a student of Master of Laws (International Law) at Dharmashastra National Law University, Madhya Pradesh.)