Is Sky the Limit or its Limited Sky ? Right to Privacy and Drones

Let us see first what is Drone?

In ancient times pigeons were used as flying objects for transmitting data from person to person. They were trained to locate the person. Similarly monkeys were also messenger for transmitting data but there was nothing more than transmitting messages.

In 4th and 5th Century  great Poet Kālidāsa created his own genre of poetry with Meghadūta (The Cloud Messenger), the story of a Yaksha trying to send a message to his lover through a cloud. Kalidasa set this poem to the mandākrāntā meter, which is known for its lyrical sweetness. It is one of Kalidasa’s most popular poems and numerous commentaries on the work have been written.

In todays time we have advance version of Drone that is Unmanned Vehicle.

An unmanned aerial vehicle (UAV) (or un-crewed aerial vehicle, commonly known as a drone) is an aircraft without a human pilot on board and a type of unmanned vehicle. UAVs are a component of an unmanned aircraft system (UAS); which include a UAV, a ground-based controller, and a system of communications between the two. The flight of UAVs may operate with various degrees of autonomy: either under remote control by a human operator or autonomously by onboard computers.

Categories of Drone and its uses

 UAVs were originally used for missions too “dull, dirty or dangerous” for humans. While they originated mostly in military applications, their use is rapidly expanding to commercial, scientific, recreational, agricultural, and other applications, such as policing and surveillance, product deliveries, aerial photography, infrastructure inspections, smuggling, and drone racing. Civilian UAVs now vastly outnumber military UAVs, with estimates of over a million sold by 2015. It can also be used for terror and spying.

A UAV is defined as a “powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or nonlethal payload”,  missiles are not considered UAVs because the vehicle itself is a weapon that is not reused, though it is also un-crewed and in some cases remotely guided. That being said, UAV is a term that is commonly applied to military use cases

UAVs typically fall into one of six functional categories (although multi-role airframe platforms are becoming more prevalent):

  • Target and decoy – providing ground and aerial gunnery a target that simulates an enemy aircraft or missile
  • Reconnaissance – providing battlefield intelligence
  • Combat – providing attack capability for high-risk missions
  • Logistics – delivering cargo
  • Research and development – improve UAV technologies
  • Civil and commercial UAVs – agriculture, aerial photography, data collection

Classifications according to aircraft weight are quite simpler:

  • Micro air vehicle (MAV) – the smallest UAVs that can weigh less than 1g
  • Miniature UAV (also called SUAS) – approximately less than 25 kg
  • Heavier UAVs

First we will study two important Judgments of Supreme Court touching the subject of Right to Privacy and provisions of open sky to fly unmanned vehicles in India. Flying unmanned vehicles has many uses but it has many disadvantage. It can be utilized for terror purpose and it can also used for surveillance. In India till recently there was no guiding laws for operation and use of Drones. Since there was no license required people were using it freely. In 2014 one news item flashed  a Mumbai based Pizzeria use an unmanned vehicle to air-drop pizzas in its vicinity.  Government of India suddenly  imposed a ban on the use of civil drones. This blanket ban  resulted into  set back the emerging domestic drone industry. In the following years, the ban was clearly impractical as imported drones being easily available both online and offline platforms as toys. It took four years for the government agencies to start  issuing license/ permission to use Drones.

Before going to the guidelines now enacted by government of India we must see the status of Right to Privacy. Can your neighbor to tease you or harass you fly unmanned vehicles on your property and take photographs without your consent? 

We see drones used by countries to get surveillance report of enemy country. Or to get details of army, defense etc. Lets see what Supreme Court say on this point.

Right to Privacy:

JUSTICE K S PUTTASWAMY (RETD.), AND ANR. VERSUS UNION OF INDIA AND ORS. 2015 (11) Scale 586 :2015 (10) SCC 92 This case present challenges for constitutional interpretation. If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection.

Cases referred:

M P Sharma v Satish Chandra, District Magistrate, Delhi1 (“M P Sharma”) (1954) SCR 1077

A K Gopalan v State of Madras (“Gopalan”) AIR 1950 SC 27

Kharak Singh v State of Uttar Pradesh (“Kharak Singh”) (AIR 1963 SC 1295: (1964) 1 SCR 332: (1963) 2 Cri LJ 329)

The basic question whether privacy is a right protected under our Constitution requires an understanding of what privacy means. For it is when we understand what interests or entitlements privacy safeguards, that we can determine whether the Constitution protects privacy.

In this matter court was to deal with  various aspects of privacy including :

  1. i. Whether there is a constitutionally protected right to privacy;
  2. ii. If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights such as life and personal liberty;
  3. iii. the doctrinal foundations of the claim to privacy;
  4. iv. the content of privacy; and
  5. v. the nature of the regulatory power of the state.

Decision in M P Sharma the challenge was that, the searches violated the fundamental rights of the petitioners under Article 19(1)(f) and Article 20(3) of the Constitution. Justice Jagannadhadas, speaking for the Bench, held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution. The Constitution makers did not subject the regulation by law of the power of search and seizure to a fundamental right of privacy, which is similar to the Fourth amendment of the US Constitution, which was  pressed  during arguments in aid to question the existence of a protected right to privacy under our Constitution.

Decision in Kharak Singh :

Kharak Singh, who was subjected to regular surveillance, including midnight knocks, moved this Court for a declaration that his fundamental rights were infringed.

When the decision in Kharak Singh was handed down, the principles governing the inter-relationship between the rights protected by Article 19 and the right to life and personal liberty under Article 21 were governed by the judgment in Gopalan.
Gopalan
considered each of the articles in the Chapter on fundamental rights as embodying distinct (as opposed to over-lapping) freedoms. Hence in Kharak Singh, the Court observed : “In view of the very limited nature of the question before us it is unnecessary to pause to consider either the precise relationship between the “liberties” in Article 19(1)(a) & (d) on the one hand and that in Article 21 on the other, or the content and significance of the words “procedure established by law” in the latter Article, both of which were the subject of elaborate consideration by this Court in A.K. Gopalan v. State of Madras.”

Justice Subbarao in dissenting Judgment held that, Article 21 embodies the right of the individual to be free from restrictions or encroachments. In this view, though the Constitution does not expressly declare the right to privacy as a fundamental right, such a right is essential to personal liberty. Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba Rao in his dissent rely upon the observations of Justice Frankfurter in Wolf v Colorado which specifically advert to privacy. The majority, while relying upon them to invalidate domiciliary visits at night, regards the sanctity of the home as part of ordered liberty. In the context of other provisions of the regulation, the majority declines to recognise a right of privacy as a constitutional protection. Justice Subba Rao recognised a constitutional by protected right to privacy, considering it as an ingredient of personal liberty.

‘Procedure established by law’ under Article 21 was, in this view, not capable of being expanded to include the ‘due process of law’. Justice Fazl Ali dissented. The dissent adopted the view that the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom.

The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the relationship between Articles 19 and 21, based on the view of the majority in Gopalan. This view stands abrogated particularly by the judgment in Cooper and the subsequent statement of doctrine in Maneka. The decision in Maneka, in fact, expressly recognized that it is the dissenting judgment of Justice Subba Rao in Kharak Singh which represents the exposition of the correct constitutional principle.

M P Sharma was a case where a law prescribing a search to obtain documents for investigating into offences was challenged as being contrary to the guarantee against self-incrimination in Article 20(3). The Court repelled the argument that a search for documents compelled a person accused of an offence to be witness against himself. Unlike a notice to produce documents, which is addressed to a person and whose compliance would constitute a testimonial act, a search warrant and a seizure which follows are not testimonial acts of a person to whom the warrant is addressed, within the meaning of Article 20(3).

The decision in M P Sharma did not decide whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21. Hence the decision cannot be construed to specifically exclude the protection of privacy under the framework of protected guarantees including those in Articles 19 or 21.

The decision in Kharak Singh is noteworthy because while invalidating Regulation 236(b) of the Police Regulations which provided for nightly domiciliary visits, the majority construed this to be an unauthorized intrusion into a person’s home and a violation of ordered liberty. While arriving at this conclusion, the majority placed reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the majority judgment specifically adverts to ‘privacy’ twice). Having relied on this doctrine to invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the challenge to other clauses of Regulation 236 on the ground that the right of privacy is not guaranteed under the Constitution and hence Article 21 had no application. This part of the judgment in Kharak Singh is inconsistent with the earlier part of the decision. The decision of the majority in Kharak Singh suffers from an internal inconsistency.

In Additional District Magistrate, Jabalpur v. S.S. Shukla, (1976) 2 SCC 521, a Constitution Bench of Supreme Court arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether.

It was held that:

  • It is clear that the international covenants and declarations to which India was a party, namely, the 1948 Declaration and the 1966 Covenant both spoke of the right to life and liberty as being “inalienable”. Given the fact that this has to be read as being part of Article 21 by virtue of the judgments referred to supra, it is clear that Article 21 would, therefore, not be the sole repository of these human rights but only reflect the fact that they were “inalienable”; that they inhere in every human being by virtue of the person being a human being;
  • Secondly, developments after this judgment have also made it clear that the majority judgments are no longer good law and that Khanna, J.’s dissent is the correct version of the law. Section 2(1)(d) of the Protection of Human Rights Act, 1993 recognises that the right to life, liberty, equality and dignity referable to international covenants and enforceable by Courts in India are “human rights”. And international covenants expressly state that these rights are ‘inalienable’ as they inhere in persons because they are human beings.

The Second Judgment came  was on 24th August,2017

2017 (14) Scale 375 :2018 (1) SCC 809 :

In subsequent Judgment on 26 September, 2018 apex court held that : also known as AADHAR case

Privacy has been held to be an intrinsic element of the right to life and personal liberty under Article 21 and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. Like the right to life and liberty, privacy is not absolute limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards. The Constitution itself permits State to impose reasonable restrictions on these rights under certain circumstances. Thus, extent and scope of the right to privacy and how and when it can be limited by the State actions is also to be discerned. The uniqueness of biometric data is not absolute, it is relative.

On Data protection Supreme Court referred to Israel PM speech

“In a recent speech by Mr. Benjamin Netanyahu, Prime Minister of Israel, while talking about innovation and entrepreneurship, he brought out an interesting phenomena in the world of free market principles, i.e. in the era of globalisation, in the following words: “Look at the ten leading companies in 2006, five energy companies, one IT company Microsoft and a mere ten years later, in 2016, a blink of an eye, in historical terms, its completely reversed, five IT companies one energy company left. The true wealth is in innovation – you know these companies – Apple, Google, Microsoft, Amazon, Facebook.” 158. He adds by making a significant statement as the reason behind this change: “…there is a reason something is going on, it’s a great change – you want to hear a jargan – it’s a one sentence, this is a terrible sentence, but I have no other way to say, it’s a confluence of big data, connectivity and artificial intelligence. Ok, you get that? You know what that does – it revolutionises old industries and it creates entirely new industries, so here is an old industry that Israel was always great in – Agriculture. We are always good in agriculture but now we have precision agriculture. You know what that is? See that drone in the sky is connected to a big database and there is sensor at the field and in the field there is drip irrigation and drip fertilization and now we can target with this technology the water that we give, the fertilizer that we give down to the individual plant that needs it. That’s precision agriculture, that’s Israel. Unbelievable.”

Law of privacy and Drones

Flying drone over your property amounts to trespass in your Right to Privacy?

This was answered by US Court in the matter of United States v. Causby, 328 U.S. 256 (1946) regarding flying of aircrafts over private property

United States v. Causby No. 630 Argued May 1, 1946 Decided May 27, 1946 328 U.S. 256

Facts :

Respondents owned a dwelling and a chicken farm near a municipal airport. The safe path of glide to one of the runways of the airport passed directly over respondents’ property at 83 feet, which was 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. It was used 4% of the time in taking off and 7% of the time in landing. The Government leased the use of the airport for a term of one month commencing June 1, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever was earlier. Various military aircraft of the United States used the airport. They frequently came so close to respondents’ property that they barely missed the tops of trees, the noise was startling, and the glare from their landing lights lighted the place up brightly at night. This destroyed the use of the property as a chicken farm and caused loss of sleep, nervousness, and fright on the part of respondents. They sued in the Court of Claims to recover for an alleged taking of their property and for damages to their poultry business. The Court of Claims found that the Government had taken an easement over respondents’ property, and that the value of the property destroyed and the easement taken was $2,000; but it made no finding as to the precise nature or duration of the easement.

The US Supreme Court laid down that 8 ‘the maxim of “cujus est solum ejus est usque ad coelom (he who possesses the land possesses also that which is above it)—would not apply in the modern world to extend ownership over land to the periphery of the universe.

Held:

A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 328 U. S. 260-267.

The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 328 U. S. 260-261.

 The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.

 Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U.S. 263-264.

In California v. Ciraolo, 476 U.S. 207  US Supreme Court  granted certiorari to determine whether the Fourth Amendment is violated by aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home.

In deciding whether an area is within the curtilage, courts “have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e. g., United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F.2d 451, 453 (CA5 1978); Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956).” Oliver v. United States, supra, at 180. The lower federal courts have agreed that the curtilage is “an area of domestic use immediately surrounding a dwelling and usually but not always fenced in with the dwelling.” United States v. LaBerge, 267 F. Supp. 686, 692 (Md. 1967); see United States v. Van Dyke, 643 F.2d 992, 993, n. 1 (CA4 1984). Those courts also have held that whether an area is within the curtilage must be decided by looking at all of the facts. Ibid., citing Care v. United States, supra, at 25. Relevant facts include the proximity between the area claimed to be curtilage and the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See Care v. United States, supra, at 25; see also United States v. Van Dyke, supra, at 993-994.

Drone and evolution of Law in India:

By a Public Notice dated 13th January,2020 Government of India called upon people who own or possess Drone to register the same.

On 2nd June, 2020 draft rules and guidelines were Notified by Government of India.

It categorise Drones as under:

CATEGORISATION/CLASSIFICATION

The UAS shall be categorized as under:

 (1) Remotely Piloted Aircraft System (RPAS);

(2) Model Remotely Piloted Aircraft System;

(3) Autonomous Unmanned Aircraft System.

 Classification of Unmanned Aircraft. — The Unmanned Aircraft (UA) shall be classified based upon the Maximum All-Up-Weight (including payload) of the UA as under:

i) Nano: Less than or equal to 250 gram;

 ii) Micro: Greater than 250 gram and less than or equal to 2 kilogram;

 iii) Small: Greater than 2 kilogram and less than or equal to 25 kilogram;

iv) Medium: Greater than 25 kilogram and less than or equal to 150 kilogram; and

 v) Large: Greater than 150 kilogram. Explanation. — A Nano class Unmanned Aircraft shall be regarded in the next higher category if it exceeds either of the following performance parameters: (a) maximum speed in level flight limited to 15 meters/second; (b) maximum attainable height limited to 15 meters and range limited to 100 meter from the remote pilot;

Authorisation of a Person. — To be authorised by the Director-General, an applicant shall meet the following requirements: —

  • eligibility conditions as specified in rule 7; and
  • other conditions as specified in Schedule I. 7. Eligibility Conditions for Authorisation. — A person referred in rule 5 may be granted authorisation subject to fulfillment of following eligibility conditions— (i) an individual who is— (a) a citizen of India, and (b) 18 years of age or more; or (ii) a company or a body corporate provided that— (a) it is registered and has its principal place of business within India, and (b) the Chairman and at least two-thirds of its directors are citizens of India; or (iii) a firm or an association of persons or body of individuals or a local authority or any legal entity, whether incorporated or not, Central and State Government or an agency thereof: Provided that for clauses (ii) and (iii) of this rule, the substantial ownership and effective control shall vest in Indian nationals.  

On 8th June,2020 a Public Notice was issued to voluntarily disclose Drones and register the same

Can Drones fly anywhere?

Answer is No: Government at the time of drafting the Guidelines for operating Drones considered and kept in mind the above principles laid down by the Supreme Court and also the established international principles discussed above.

 The Draft Rule provides that no person shall fly or assist in flying an unmanned aircraft over any of the areas specified in Schedule VIII, save, in accordance with the conditions specified by the Central Government

Rule 40 says No person shall fly any UAS in such circumstances as, by reason of proximity to persons or property or aircraft or for other reason, to cause unnecessary danger to any person or property or aircraft.

 No person shall operate a UAS in a physical or mental condition or under the influence of intoxicating and psychoactive substances that may interfere with safe operation of the UAS.

For Photography it provides that, An imagery may be captured by an unmanned aircraft except in the non permissible area after ensuring the privacy of an individual and his property. No person shall capture, or cause or permit to be captured, from an UA in flight, any imagery of the areas specified in Schedule VIII: Provided that the Director-General from time to time, may, by order in writing direct that such imagery of any other area as specified in the order shall not be conducted by any person.

According to India’s national aviation authority, the Ministry of Civil Aviation, flying a drone is legal in India, but needs  compliant with the drone regulations .

Schedule VIII (Rule 34) No Operation Area 1.

OPERATING RESTRICTIONS

1.1 No UA shall be flown:

a) Within a distance of 5 kilometer from the perimeter of airports at Mumbai, Delhi, Chennai, Kolkata, Bengaluru and Hyderabad;

b) Within a distance of 3 kilometer from the perimeter of any civil, private or defence airports, other than those mentioned in Para

 c) Above the Obstacle Limitation Surfaces (OLS) or PANS-OPS surfaces, whichever is lower, of an operational aerodrome, specified in the rules related to Height Restrictions for Safeguarding of Aircraft Operations;

d) Within permanent or temporary Prohibited, Restricted and Danger Areas including TRA, and TSA, as notified in AIP by Airport Authority of India; e) Within 25 kilometer from international border which includes Line of Control (LoC), Line of Actual Control (LAC) and Actual Ground Position Line (AGPL);

f) Beyond 500 meter (horizontal) into sea from coast line provided the location of ground station is on fixed platform over land;

g) Within 3 kilometer from perimeter of military installations/ facilities/ where military activities/ exercises are being carried out unless clearance is obtained from the local military installation/facility;

 h) Within 5 kilometer radius from Vijay Chowk in Delhi. However, this is subject to any additional conditions/ restrictions imposed by local law enforcement agencies/ authorities in view of the security.

 i) Within 2 kilometer from perimeter of strategic locations/ vital installations notified by Ministry of Home Affairs unless clearance is obtained from MHA;

j) Within 3 kilometer from radius of State Secretariat Complex in State Capitals;

k) From a mobile platform such as a moving vehicle, ship or aircraft; and

 l) Over eco-sensitive zones around National Parks and Wildlife Sanctuaries notified by Ministry of Environment, Forests and Climate Change without prior permission.

1.2 The Director-General may permit flying of UA in select restricted areas on request made by any Government Authority or any airport Operator in exceptional circumstances.

For details  following are official links.

https://dronenlisting.dgca.gov.in/
https://digitalsky.dgca.gov.in/

SHRUTI DESAI

26th June,2020

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