Right to Privacy in the Age of Surveillance: Balancing Security and Liberty in India

Introduction

In an era marked by data-driven governance and digital expansion, the tension between individual privacy and state surveillance has become more palpable than ever. The landmark 2017 judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India recognized the Right to Privacy as a fundamental right under Article 21 of the Indian Constitution. However, the rise in mass surveillance mechanisms, digital identification systems like Aadhaar, and the growing reliance on artificial intelligence in law enforcement raise critical questions about the future of this right.

The Constitutional Framework

The Indian Constitution does not explicitly mention the right to privacy. It evolved as an unenumerated right under Article 21 — the right to life and personal liberty. In the Puttaswamy judgment, the Supreme Court held that privacy is intrinsic to human dignity and autonomy. It encompasses not just bodily integrity but also informational privacy — the control individuals have over their personal data.

This judgment marked a significant shift from the earlier rulings like M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962), where the Court denied privacy as a fundamental right.

Rise of Surveillance Laws and Systems

India does not have a single comprehensive surveillance law. Instead, the state relies on outdated and fragmented legislation, including:

Indian Telegraph Act, 1885: Allows interception of communication under certain conditions.

Information Technology Act, 2000 (Section 69): Permits the government to monitor and decrypt digital information for national security.

Central Monitoring System (CMS) and NATGRID: These government surveillance systems operate with minimal transparency or independent oversight.

While these frameworks aim to ensure national security, they lack adequate safeguards and judicial supervision, creating a potential for misuse.

Aadhaar and the Data Dilemma

The Aadhaar project, India’s biometric-based unique identity system, is one of the largest in the world. Though aimed at improving welfare delivery, it has faced criticism over data breaches, mandatory linking for services, and erosion of consent.

The Supreme Court, in Puttaswamy (Aadhaar-2), upheld the constitutional validity of Aadhaar but limited its mandatory use. However, subsequent executive actions have reintroduced compulsory linkages (e.g., PAN-Aadhaar), sparking renewed concerns.

The DPDP Act, 2023 – A Missed Opportunity?

The Digital Personal Data Protection Act, 2023 was hailed as a long-awaited reform, but many experts argue that it prioritizes state power over individual rights. The Act exempts the government from many of its provisions under vague terms such as "public order" and "sovereignty," undermining the very essence of privacy protections.

Moreover, the dilution of the role of the Data Protection Board and lack of effective remedy mechanisms have raised alarms about the adequacy of the law in protecting citizens from arbitrary surveillance.

Global Comparisons

Unlike the European Union’s GDPR, which enshrines strong individual rights and imposes strict limitations on data processing, India’s approach leans heavily in favor of state interests. In countries like the United States and the United Kingdom, surveillance powers are often subject to parliamentary or judicial oversight — a system largely absent in India.

Way Forward: Striking the Balance

To uphold the constitutional promise of privacy, India needs a multi-pronged approach:

Comprehensive Surveillance Reform: Laws should include transparency, necessity, proportionality, and judicial oversight.

Strengthening Data Protection: Amendments to the DPDP Act must focus on individual rights and minimize exemptions.

Public Awareness and Digital Literacy: Citizens must be educated about their rights and data responsibilities.

Independent Regulatory Bodies: Empowered authorities must ensure compliance and investigate breaches effectively.

Conclusion

The journey from Kharak Singh to Puttaswamy reflects India’s evolving understanding of privacy. But without strong checks on state surveillance and robust data protection mechanisms, the constitutional right to privacy risks becoming a hollow promise. In the digital age, safeguarding privacy is not a luxury — it is a necessity for preserving democracy, human dignity, and liberty. Visit Us- https://www.dcorpo.legal/