Introduction
The emergence of new technologies, such as artificial intelligence (AI), big data, and biometric surveillance, adds new layers of complexity. In an increasingly connected world, the tension between privacy rights and national security has become one of the most contentious issues in legal discourse. Governments worldwide face the daunting challenge of safeguarding their citizens from threats such as terrorism, cyberattacks, and organised crime while also respecting the fundamental human right to privacy. This legal battleground often centres around surveillance practices, data protection laws, and the interpretation of constitutional rights in the digital era.
The right to privacy: A fundamental right
In 2017, the Supreme Court ruled that the right to privacy is a fundamental right under Article 21 of the Indian Constitution. This landmark judgment held that privacy is essential to individual dignity, autonomy, and liberty. However, this right is not absolute and can be limited when national security is at stake.
The doctrine of proportionality
To balance individual rights with national security concerns, the Supreme Court has introduced the doctrine of proportionality. This doctrine requires that any limitation on privacy rights must be necessary, minimal, and proportionate to the security threat. This approach ensures that government agencies do not overstep their authority and infringe on individual privacy unnecessarily.
Surveillance and data protection laws around the world
United States: The focus is on national security, with laws like the Foreign Intelligence Surveillance Act (FISA) allowing broad surveillance powers. However, there’s also strong constitutional protection under the Fourth Amendment.
European Union: GDPR dwells on data protection as a fundamental right and gives strict rules on data processing and penalties for violations.
China: In contrast, China has implemented extensive surveillance systems with little regard for individual privacy, justified by the state’s interest in maintaining social stability
Striking The Right Balance
The ideal approach to balancing privacy and national security is nuanced:
1. Transparency: Governments should communicate the scope and purpose of surveillance programs to the public.
2. Accountability: Independent oversight bodies and judicial review can help prevent abuses of power.
3. Proportionality: Surveillance measures should be proportionate to the threat and based on clear legal standards.
4. Global Cooperation: International agreements can help in maintaining data protection standards while respecting national security interests.
National security and surveillance
The Indian government has enacted various laws to ensure national security, including the Information Technology Act, of 2000, and the Unlawful Activities (Prevention) Act, of 1967. These laws permit surveillance powers to government agencies, allowing them to intercept and monitor digital communications. While these measures aim to combat terrorism and other security threats, they also raise concerns about privacy infringement.
Technological Challenges And Emerging Issues
The rapid evolution of technology has outpaced traditional legal frameworks, creating new challenges:
Artificial Intelligence (AI) and Big Data: Governments and corporations now collect large amounts of personal data to fuel AI algorithms, raising questions about consent, bias, and data misuse.
Biometric Surveillance: Technologies like facial recognition and fingerprint scanning are increasingly used for security purposes, but they pose significant privacy risks, especially in public spaces.
Cross-Border Data Flows: In the digital economy, data flows across borders with ease, complicating the enforcement of national data protection laws and raising concerns about foreign surveillance.
Cases
– Justice K.S. Puttaswamy (Retd.) v. Union of India (2017): This landmark case established the right to privacy as a fundamental right under Article 21 of the Indian Constitution. The court ruled that privacy is essential to individual dignity, autonomy, and liberty ¹.
– Kharak Singh v. State of Uttar Pradesh (1962): In this case, the Supreme Court upheld the constitutionality of police surveillance, emphasizing public security over privacy rights. However, Justice Subba Rao’s dissenting opinion emphasized that privacy is an integral part of personal liberty ¹.
– Anuradha Bhasin v. Union of India (2020): This case dealt with internet shutdowns in Jammu and Kashmir, with the Supreme Court emphasizing the need for proportionality and judicial oversight in restricting access to information .
– People’s Union for Civil Liberties v. Union of India (1996): The Supreme Court set rules for the judicious exercise of surveillance and interception in phone tapping cases, which has implications for cyber surveillance .
– ADM Jabalpur v. Shivkant Shukla (1976): Although not directly related to privacy, this case allowed state power to override individual rights during an emergency, setting a precedent for broad government discretion .
Conclusion
The legal battle over privacy and national security is far from over. As new technology evolves, so too will the legal frameworks that govern it. The challenge for lawmakers, courts, and society is to maintain a balance that protects both national security and fundamental rights i.e. privacy of individuals. This ongoing legal battle reflects not just a conflict of interests but the very values that define democratic societies.
contributed by: tanisha arora(intern)