Introduction
Technological advancements have empowered the modern State with unprecedented capabilities of monitoring individuals across digital and physical spaces. In India, surveillance has grown rapidly through digital interception mechanisms, biometric databases, closed-circuit camera networks, and artificial-intelligence-based predictive tools. While these systems are frequently justified on grounds of national security, crime prevention, and administrative efficiency, they raise complex constitutional questions—especially concerning the individual’s right to privacy, dignity, and informational control. The tension between technological surveillance and civil liberties intensified after the Supreme Court unequivocally recognized privacy as a fundamental right in Puttaswamy (2017). Against this backdrop, it becomes crucial to examine the compatibility of India’s surveillance practices with constitutional principles.
Growth and Nature of Surveillance Technologies in India
Surveillance in India today spans several distinct technological modalities. Physical surveillance is primarily carried out through CCTV cameras deployed across urban spaces, often integrated with facial recognition systems capable of real-time identification. Digital and electronic surveillance includes interception of emails, call data, browsing patterns, and social media activity through tools enabled by the Information Technology Act and related guidelines. Aadhaar-based biometric systems have facilitated centralised storage of fingerprints, iris scans, and demographic data that are increasingly linked across government and private databases. Most recently, algorithmic surveillance and predictive policing mechanisms have emerged, using AI models to identify patterns of criminal behaviour, thereby extending surveillance from monitoring actions to forecasting potential conduct. These technologies create deep intrusions into personal autonomy and informational privacy.
Constitutional Framework and Privacy Jurisprudence
The constitutional foundation for regulating surveillance lies principally in Article 21 of the Constitution, which protects the right to life and personal liberty. The Puttaswamy judgment affirmed that privacy is intrinsic to human dignity and autonomy and is, therefore, a fundamental right. The Court established a four-fold test that any encroachment on privacy must satisfy:
- Legality, requiring the existence of a valid law;
- Legitimate Aim, ensuring that surveillance pursues a constitutionally valid and necessary objective;
- Necessity, requiring that the measure is essential for achieving the goal; and
- Proportionality, mandating that the intrusion must be the least restrictive means available.
This doctrinal test is the touchstone for evaluating all existing and future surveillance systems. Any surveillance lacking statutory authority or failing proportionality scrutiny is constitutionally impermissible.
Statutory Architecture Governing Surveillance
India’s legislative framework on surveillance is fragmented and outdated. The Information Technology Act, 2000, particularly Section 69, authorizes interception and monitoring of electronic information but contains broad ambiguities and lacks procedural safeguards. The Indian Telegraph Act, 1885 continues to govern phone tapping, despite being enacted in an era preceding modern communication technologies. The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 permits biometric authentication for welfare distribution but has raised concerns of profiling due to data convergence. The Criminal Procedure Code covers traditional search and seizure but provides no comprehensive regulation of digital surveillance or algorithmic tools. These statutory gaps leave vast areas of surveillance unregulated and susceptible to executive overreach.
Judicial Responses to Surveillance Practices
The judiciary has attempted to impose procedural discipline on surveillance in the absence of comprehensive legislation. In PUCL v. Union of India (1997), the Supreme Court laid down detailed guidelines for telephonic interception, requiring justification, review committees, and limited duration of tapping orders. However, these safeguards were formulated in a pre-digital context and do not adequately regulate modern electronic surveillance. The Puttaswamy privacy verdict marked a constitutional turning point, warning that unregulated surveillance could lead to the creation of a “surveillance state.” Subsequent Aadhaar judgments acknowledged risks associated with biometric centralisation and struck down compulsory linking with private services. Several High Courts have also expressed reservations regarding facial recognition systems due to the absence of any legislative basis or accountability mechanism. These judicial interventions reflect a consistent concern regarding unchecked executive control over surveillance.
Challenges Surrounding Surveillance Expansion
The proliferation of surveillance technologies generates several legal and ethical challenges. Continuous monitoring of public and digital behaviour can create a chilling effect, discouraging individuals from exercising their rights to free speech, expression, and peaceful assembly. Centralised biometric databases expose citizens to severe risks of identity theft and unauthorized profiling. AI-driven predictive policing systems amplify biases inherent in training datasets, resulting in discriminatory targeting of vulnerable communities. The most significant structural deficiency is the absence of independent oversight or judicial authorization for surveillance activities. Surveillance orders are typically issued by executive authorities, limiting transparency and enabling arbitrary intrusion into private life. These concerns underscore the urgent need for a structured regulatory framework.
Comparative Global Frameworks
A study of foreign regulatory models reveals standards far more robust than India’s. The European Union’s General Data Protection Regulation (GDPR) enforces strict principles of purpose limitation, data minimization, and independent data protection authorities. The United Kingdom’s Investigatory Powers Act requires judicial commissioners to authorize surveillance warrants and mandates periodic transparency disclosures. The United States, through Fourth Amendment jurisprudence and decisions such as Carpenter v. United States, increasingly subjects digital surveillance to judicial scrutiny. These jurisdictions demonstrate that effective oversight, transparency, and statutory clarity are essential components of any constitutional surveillance system—components currently lacking in India.
Towards a Constitutionally Sound Surveillance Regime
A balanced surveillance framework in India must begin with the enactment of a comprehensive statute defining the scope, limits, and procedural safeguards governing all forms of surveillance. Judicial authorization should be mandatory for any intrusive surveillance activity, particularly those involving digital interception, biometric databases, or AI-driven technologies. An independent privacy or data protection authority must be established with powers to audit, supervise, and impose penalties for misuse. Principles of data minimization, limited retention, purpose limitation, and encryption should be mandatory. Public agencies must issue annual transparency reports, and algorithmic decision-making tools must be subjected to periodic accountability audits. These reforms would align surveillance practices with constitutional principles and international standards.
Conclusion
The intersection of surveillance technology and privacy represents one of the most critical constitutional debates of the digital era. While national security and administrative efficiency are legitimate state interests, they cannot be pursued at the expense of fundamental rights. The recognition of privacy as a fundamental right requires that all forms of surveillance be subjected to strict legality, necessity, and proportionality standards. Without transparency, oversight, and statutory discipline, India risks drifting toward a surveillance state. A rights-centric legal framework is therefore essential to preserve democratic values, ensure governmental accountability, and protect the dignity and autonomy of citizens in an increasingly digital society.
Contributed By – Krishnkant Sharma