Watching the Watchers: Constitutional Restraints on Digital Surveillance in India

Authored By: Sinbo Tesfa Tasisa

Addis Ababa University

Abstract

The expansion of digital surveillance technologies has fundamentally altered the relationship between the State and the individual. While these tools enhance law enforcement efficiency, they also raise serious constitutional concerns regarding privacy, liberty, and accountability. This article critically analyzes India’s surveillance framework through constitutional provisions, statutory laws, and judicial interpretations. It argues that despite strong judicial recognition of privacy as a fundamental right, India lacks a comprehensive and transparent surveillance regime. The article concludes that without legislative reform grounded in proportionality and judicial oversight, digital policing threatens to erode constitutional democracy.

Introduction

Digital surveillance has become an integral feature of modern governance. From interception of communications to facial recognition systems, the State increasingly relies on technology to maintain public order and security. However, such practices raise pressing constitutional questions about the limits of State power and the protection of individual autonomy.

The recognition of the right to privacy as a fundamental right by the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India marked a turning point. Yet, surveillance practices in India continue to operate under outdated statutes and executive discretion. This article examines whether India’s current legal framework adequately regulates State surveillance in the digital age.

Research Methodology

This article adopts a doctrinal and analytical research methodology. It relies on constitutional provisions, statutory frameworks, and judicial precedents. Secondary sources such as scholarly articles, law commission reports, and official publications supplement the analysis.

Legal Framework Governing Surveillance

India’s surveillance regime is primarily governed by the Indian Telegraph Act, 1885 and the Information Technology Act, 2000. These laws grant broad interception powers to the executive but provide limited safeguards, raising concerns about arbitrariness and abuse.

Judicial Interpretation

In People’s Union for Civil Liberties v. Union of India, the Supreme Court recognized that interception of communications infringes privacy and prescribed safeguards. This jurisprudence was significantly strengthened in Justice K.S. Puttaswamy (Retd.) v. Union of India, where privacy was declared a fundamental right subject to legality, necessity, and proportionality.

Critical Analysis

Despite judicial safeguards, India’s surveillance framework suffers from opacity, lack of independent oversight, and technological overreach. Authorization remains executive driven, and individuals rarely have remedies against unlawful surveillance.

Recent Developments

The Digital Personal Data Protection Act, 2023 represents progress toward regulating data processing, but broad State exemptions limit its effectiveness. Public debate continues regarding mass surveillance projects and the need for parliamentary oversight.

Suggestions and Way Forward

India must enact a comprehensive surveillance statute mandating judicial authorization, independent oversight, transparency mechanisms, and accountability standards. Such reforms are essential to balance national security with constitutional freedoms.

Conclusion

Surveillance powers, if left unchecked, risk undermining the very constitutional values they seek to protect. A democratic State must ensure that technological advancement does not come at the cost of liberty, dignity, and privacy.

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