State Surveillance vs. Privacy in India: Legal and Constitutional Perspectives

Arguments in favor of state surveillance

In the modern digital age, state surveillance is an essential tool for governments around the world because of a need to preserve national security and prevent crime, as well as to promote public order and prevent civil unrest. State surveillance, proponents believe, is not only justified but also necessary in dealing with complex challenges from modern threats – threats that include terrorism, cybercrime, and civil unrest. In other words, these arguments depend on the assumption that surveillance is a better capacity for the state in the detection, prevention, and response to threats against society.

National Security as the Main Driver

The main argument in favor of state surveillance is about national security. Since there is increased terrorism from other countries worldwide these days, state level surveillance has been very pivotal in the prevention of possible threats. Governments hold the argument that programs like surveillance of traffic on the internet, communications on phones, and financial transactions are fundamental elements in tracing and aborting terrorist networks. The September 11 attacks brought a new USA PATRIOT Act, significantly expanding the surveillance powers of U.S. intelligence agencies so more could be collected and monitored to prevent the attacks from happening again. The case is the same with India that has enacted provisions of the Unlawful Activities (Prevention) Act, UAPA which gives the authority to the government to monitor communications and keep under observation people suspected of involvements in terrorist activities. Though these provisions are highly controversial, they have been justified on grounds of a need for national security and urgent response to continually changing threats.[i]

Crime Prevention and Law Enforcement

State surveillance is also used as a tool to prevent crimes and implement law. Many surveillance technologies are incorporated components of modern policing: CCTV cameras, facial recognition systems or biometric databases. According to its supporters, these technologies permit the police to screen public spaces, identify perpetrators and gather crucial evidence in criminal investigations.

Surveillance in anti-organized crime activities is relatively well documented.

For example, the United States foreign intelligence surveillance act allows the surveillance of individuals for suspected espionage or criminal activities associated with a foreign government. For instance, in India, there is the Central Monitoring System and National Intelligence Grid for government monitoring of communications and transactions. This is a precious form of assistance needed to trace serious crimes like human trafficking, drugs smuggling, and money laundering. Detractors of surveillance argue that the strategies have a deterrence effect because they enhance the risk of getting an individual caught, thereby diminishing the commission of crimes. Studies have shown that areas with high units of CCTV record smaller percentage rates of minor thefts and vandalism. This implies that surveillance contributes to the preservation of peace in public areas. Re-establishment of Public Order and Social Stability

Another argument in favor of surveillance as part of state law is the preservation of public order. This theory is theoretically grounded on the basis that surveillance, by so doing, impels the gargantuan congregation of people, protests, or other public events together tended toward violence and chaos. The closed-circuit television surveillance of public events, such as sporting contests and political demonstrations, all over the United Kingdom has been singled out for making possible a reduction of violence and a drastic enhancement in crowd control.

In India, it was state surveillance that played a major role in handling the COVID-19 pandemic through contact tracing and monitoring applications such as Aarogya Setu fully placed for tracking the viral spread and enforcing quarantine. Privacy concerns notwithstanding, the government’s case was that such measures are necessary when public health is to be protected and health-care infrastructure is not to collapse.

Balance between Surveillance and Civil Liberties

But the arguable case for state surveillance does not, at the same time, eliminate the need for a balanced approach that recognizes rights.

Indeed, while on grounds of national security, crime prevention and public order, surveillance may be justified, unchecked surveillance stands the danger of violating civil liberties like a right to privacy under Article 21 of the Indian Constitution, as confirmed in Justice K.S. Puttaswamy v. Union of India, – thereby calling for robust checks and balances, transparency and oversight mechanisms to avoid abuse in such surveillance measures being proportionate and necessary.

Right to Privacy vs. State Surveillance: Constitutional Challenges in the Age of Technology

The right to privacy is in conflict with state surveillance and has become the defining legal and constitutional challenge of modern times.

All these come against the backdrop of intrusion which has heightened due to a number of factors such as improved, sophisticated surveillance technologies and increased sensitivities surrounding national security issues.

The Justice K.S. Puttaswamy v. Union of India judgment of the Supreme Court had an important influence on the constitutional framework of India regarding the concept of privacy as a fundamental right. It has, however, failed to deal with the deep-seated internal conflict between liberties of individuals and state apprehensions about the lack of surveillance. Constitutional Basis of Privacy The right to privacy, not being entrenched in the Indian Constitution, has been derived from the provisions of Article 21 that guarantee one’s right to life and personal liberty.

Indeed, the Supreme Court has interpreted this article of the Constitution over time and with the Puttaswamy judgment, passed unanimously by a nine-judge bench, declared privacy to be intrinsic to the right to life and liberty.

The court repeated that privacy encompassed personal autonomy, bodily integrity, and informational privacy, among others: Chandrachud J., Puttaswamy, at para 169. What followed, therefore, was a landmark judgment overturning previous judgments, such as in M.P. Sharma v. Satish Chandra,[ii] and Kharak Singh v. State of Uttar Pradesh,[iii] where the courts ruled that there was no constitutional right to privacy. For such is the fact that recognition of privacy as a basic right highly constrains state surveillance. For India, it instituted a three-step test in determining whether any law or action violating privacy is valid: (1) legality; any restriction must be supported by law; (2) legitimate aim; what amounts to the compelling interest of the state; and (3) proportionality; measures taken should be necessary and not excessive at all.

This test balances individual rights and state interests, thereby setting a high standard for privacy intrusions to be justified. State Surveillance and Its Legal Framework Despite constitutional recognition of the right to privacy, state surveillance has continued to expand, which often remains justified on grounds of national security, public order, and crime prevention.

About India, which put in place monitoring mechanisms including Central Monitoring System (CMS), Network Traffic Analysis (NETRA), and National Intelligence Grid (NATGRID), significantly enhanced the ability of the government to monitor communications and online activity.[iv]

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

[i] USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272

[ii] AIR 1954 SC 300

[iii] Supra note 01.

[iv] Rao, Surveillance and Privacy: The Indian Context, 28 J. Indian L. & Tech. 115, 2022