Author: Ritika Singh, Jaipur National University
TO THE POINT
Mass communication interception, facial recognition technology, biometric databases like Aadhaar, predictive policing tools, social media monitoring, and data retention laws are just a few examples of how India’s surveillance landscape has developed into a technologically sophisticated system. The lack of robust statutory safeguards raises worries about a developing surveillance state that is incompatible with constitutional values, even though these measures are justified on the basis of national security, counterterrorism, and cyber threat management. When monitoring lacks legal support, becomes excessive or disproportionate, or functions without transparency and accountability, it violates the right to privacy, which is based on autonomy, dignity, and the freedom to make decisions. The Puttaswamy ruling established a four-part proportionality test that calls for legality, a justifiable state goal, proportionality using the least restrictive means, and procedural protections like independent and judicial scrutiny. However, a lot of the current Indian statutes are inadequate, especially because they lack independent regulatory procedures and previous judicial authorization. In parallel, private tech firms gather enormous volumes of biometric identifiers, behavioral data, and metadata, which raises concerns about algorithmic bias, profiling, insufficient permission, and unregulated cross-border data flows. The Digital Personal Data Protection Act offers extensive exemptions and few restrictions on state surveillance. To safeguard individual rights in a contemporary digital ecosystem, India must have a comprehensive surveillance law that includes judicial clearance, regular audits, transparency requirements, data minimization, and severe consequences for unauthorized interception.
ABSTRACT
Deep constitutional, human rights, and legal issues have arisen as a result of the quick spread of surveillance technologies, which include state-run intelligence agencies, biometric identification systems, digital communication interception, and widespread private-sector data mining. The boundaries of individual privacy are always under pressure in a time when personal information may be gathered, analyzed, and stored at previously unheard-of volume and speed. The changing extent of the right to privacy under Indian constitutional law and comparable international systems is thoroughly examined in this essay. It examines the legal and regulatory foundation of surveillance methods, assesses the judicial scrutiny of such actions, and draws attention to the conflict between the goals of governmental security and the right of citizens to privacy. In order to guarantee that surveillance powers are neither arbitrary nor excessive, it also examines the need test, the proportionality concept, the criterion of legality, and the need for strong procedural protections. In the end, the abstract emphasizes how urgent it is to strike a balance in a technologically sophisticated surveillance ecosystem between governmental imperatives and the protection of human freedoms.
LEGAL JARGON
A number of important legal theories are inevitably brought up in the discussion of the right to privacy in the era of surveillance. The proportionality test must be met by any State action that violates privacy, guaranteeing that it is lawful, essential, and the least restrictive option. Further, procedural due process stipulates that individual rights cannot be reduced without fair, transparent, and legally regulated procedures. Even in cases when surveillance is justified by a legitimate state interest, such as public order or national security, appropriate constraints must be carefully crafted and cannot be used as instruments of arbitrary intrusion. In order to scrutinize surveillance authorizations, effective judicial monitoring is necessary. This is frequently accomplished through procedures like in camera review, which enable judges to study sensitive documents in private without jeopardizing national security considerations. The executive cannot assign non-delegable tasks to private organizations or subordinate authorities, such as approving intrusive surveillance. Courts may also determine whether a surveillance measure goes beyond the legal authority conferred by legislation, or whether it breaches the vires of a statute. Data minimization is another requirement of contemporary privacy jurisprudence, which mandates that just the bare minimum of information be gathered and kept. In the end, excessive or unwarranted surveillance amounts to encroachment upon seclusion, a recognized privacy right that illegally tampers with a person’s personal space.
THE PROOF: CONSTITUTIONAL & LEGAL BASIS
Article 21 of the Indian Constitution, which protects the right to life and personal liberty, is the cornerstone of the country’s right to privacy. In K.S. Puttaswamy v. Union of India (2017), the Supreme Court categorically acknowledged privacy as an inherent, unalienable, and enforceable fundamental right. Therefore, any surveillance measure must adhere to the requirements of proportionality, need, and legality. In addition, Article 14 offers defense against excessive and capricious state action. The equality and non-arbitrariness mandate of Article 14 can be violated by surveillance regimes that lack clear statutory support, transparent procedures, or rational rationale.
Additionally, Article 19(1)(a) (freedom of speech) and Article 19(1)(d) (freedom of movement) highlight how unjustified or widespread surveillance stifles free speech, encourages self-censorship, and limits legal mobility, all of which impose unlawful limitations on democratic participation. Sections 69, 69A, and 69B of the Information Technology Act of 2000 allow for the interception, monitoring, and blocking of digital communications, but only after meeting procedural requirements such written justifications, oversight committees, and necessity standards.
Interception is only allowed in “public emergencies” or “in the interest of public safety” under older frameworks like the Telegraph Act, 1885, particularly Section 5(2). However, courts have ruled that these powers must be interpreted narrowly. The current Digital Personal Data Protection Act, 2023 makes an effort to control data fiduciaries and safeguard personal information, but it gives State agencies broad exemptions on the basis of “security of the State,” which raises questions about unrestricted surveillance powers. When taken as a whole, these statutory and constitutional provisions highlight the fine line that separates state interests from individual rights in the context of surveillance.
CASE LAWS
1. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)
The right to privacy is a basic right under Article 21, according to a nine-judge Supreme Court decision. Before the State can conduct any surveillance, the Court developed the proportionality test, which requires legality, legitimate objective, necessity, proportionality, and procedural protections.
2. People’s Union for Civil Liberties (PUCL) v. Union of India (1997)
The Home Secretary’s prior consent, written justification, and regular review are all required by the Court’s comprehensive telephone-tapping requirements. It made clear that surveillance must adhere to stringent procedural norms and cannot be routine or mechanical.
3. Anuradha Bhasin v. Union of India (2020)
Indefinite internet shutdowns must be the “least intrusive” limitation, according to the Supreme Court, which ruled that they violate proportionality. Limitations that affect fundamental rights must be reviewed and justified on a regular basis.
4. Govt. of NCT of Delhi v. Association for Democratic Reforms (2002)
The Court noted that excessive or needless disclosure of personal information can hinder democratic participation and connected privacy with autonomy and informed decision-making.
5. Manohar Lal Sharma v. Union of India (Pegasus Case, 2021)
The Court emphasized that the State cannot claim a “free pass” by just citing national security when it established an independent technical committee to look into claims of unlawful spying using Pegasus malware.
CONCLUSION
The right to privacy is at a constitutional crossroads in the age of widespread surveillance. Unchecked and opaque surveillance methods undermine civil liberties, skew democratic processes, and jeopardize individual liberty, even while national security is a legitimate state priority. To protect privacy in the digital era, a strong, rights-oriented legal framework that is based on proportionality, monitoring, and responsibility is essential.
FAQS
1. In India, is the right to privacy a fundamental right?
Indeed. In Puttaswamy (2017), the Supreme Court ruled that privacy is a fundamental right under Article 21.
2. Can my calls or messages be intercepted by the government?
Yes, but only with the appropriate authorization and in accordance with Section 5(2) of the Telegraph Act or Section 69 of the IT Act, and only in situations such as “public emergency” or “security of the State.”
3. Does India permit widespread surveillance?
Without specific suspicion, widespread, indiscriminate surveillance is out of proportion and presents constitutional issues.
4. Am I shielded from government surveillance by the Data Protection Act?
Due to the government’s extensive exclusions for national security, it provides little protection.
5. What are the available remedies for illegal surveillance?
You may submit:
A petition for writ under Article 226/32
A grievance to the CERT-In
A civil and criminal claim for invasion of privacy
