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Privacy as a Fundamental Right After Puttaswamy: Limits on State Surveillance in India

Author(s) Rajendra
Country India
Abstract The ruling of the Supreme Court in Justice K.S. Puttaswamy (Retd.). v. Union of India (2017) strongly asserted that the right to privacy was inherent to Articles 14, 19 and 21 of the Constitution. This case decision reversed previous precedents (e.g. M.P. Sharma, Kharak Singh) that had rejected a general right to privacy. After Puttaswamy, any state surveillance program should pass the proportionality test of the Court: it should have a legitimate purpose, use reasonable methods, be necessary and least intrusive. We consider the performance of the laws and programs in India. The current laws, such as the Indian Telegraph Act 1885 (Sec.5(2)) and the IT Act 2000 (Sec.69), evidence laws, etc., allow extensive interception under generalized conditions (e.g. public safety or state security). Practically, such programmes as the Central Monitoring System (CMS, released 2013) and the National Intelligence Grid (NATGRID, designed 2009) allow security agencies to have access to virtually all the data. The Aadhaar ecosystem (2016 onwards) has also been channeling personal information (biometrics, financial transactions, social benefits) into a central database. We examine some of the major cases (e.g. Rajagopal v.). Tamil Nadu, PUCL v. UOI, Selvi v. Karnataka), laws and policies according to the proportionality doctrine of Puttaswamy. The comparative jurisdictions and international law (ICCPR Art.17) support the idea that the intrusion of privacy should be legal, necessary, and proportionate. Results: The interception laws in India are mostly pre-Puttaswamy and do not have particular proportionality protection. CMS and Aadhaar are surveillance programs that were introduced without proper parliamentary discussion or privacy checks, which created a constitutional strain. No all-encompassing privacy or data protection legislation (as of 2019) exists to place judicial control or redress. Recommendations: To address the issue of codification of the test of Puttaswamy, legislative changes should be made to enforce clear legal foundations and judicial warrants on surveillance, enhance independent review (e.g. a standing Interception Review Commission), and provide remedy in case of abuse. Gaps should be filled with a strong privacy/data-protection law (as proposed by the 2018 Srikrishna Committee). Legal change should be accompanied by policy protection (high data retention thresholds, auditability, transparency reports), and technical protection (end-to-end encryption, privacy-by-design).
Keywords Right to Privacy; Constitutional Law; State Surveillance; Puttaswamy Judgment; Proportionality Doctrine; Informational Privacy; Fundamental Rights; Article 21.
Published In Volume 4, Issue 2, February 2023
Published On 2023-02-03
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