Privacy on trial: surveillance, data, and the right to be forgotten
In 2017, the Supreme Court of India, in Justice K.S. Puttaswamy (Retd.) v. Union of India, declared the right to privacy a fundamental right under Article 21. That judgment was hailed as transformative, placing individual autonomy at the core of constitutional values. Yet, in the years since, privacy has repeatedly been placed on trial—by expanding state surveillance, unregulated data ecosystems, and the emerging demand for the “right to be forgotten.” The judiciary, as the guardian of liberty, is tasked with navigating this fragile balance between national interests and personal freedoms.
Surveillance and the shadow of overreach
Surveillance is not new to governance. States have long argued that monitoring
communications is essential to prevent terrorism, cybercrime, and organized violence. However, unchecked surveillance risks converting the state into a leviathan that watches its citizens without accountability. Revelations surrounding alleged use of Pegasus spyware highlighted the dangers of secret surveillance and the absence of effective oversight mechanisms.
India’s legal framework, built primarily on the Telegraph Act of 1885 and the Information Technology Act of 2000, lacks the robust safeguards found in many democracies. Authorizations often rest with executive bodies rather than independent judicial oversight. This creates the very danger that Puttaswamy warned against: privacy sacrificed at the altar of unbridled state power. For the judiciary, the task lies in ensuring that surveillance operates within constitutional guardrails—narrowly tailored, proportionate, and subject to independent checks.
Data as the new frontier
If surveillance is one arm of the privacy debate, data collection is the other. Every digital footprint—whether through Aadhaar authentication, financial transactions, or social media activity—creates a vast repository of personal information. While data fuels innovation and governance, its misuse poses grave risks of profiling, discrimination, and manipulation.
The Digital Personal Data Protection Act, 2023, is a step forward, but concerns remain: government exemptions are broad, accountability mechanisms weak, and independent oversight diluted. For a judiciary committed to constitutionalism, this raises difficult questions: Can privacy truly coexist with centralized, unchecked control over personal data? Should efficiency and governance trump individual autonomy? These are not technical questions alone—they are questions of constitutional morality.
The right to be forgotten
In the digital age, the permanence of information poses unique challenges. An old conviction, an outdated news report, or even a youthful mistake can haunt individuals indefinitely in cyberspace. The “right to be forgotten” seeks to address this by allowing individuals to request removal of personal information no longer relevant.
Indian courts have begun grappling with this right. In X v. Registrar General, High Court of Karnataka (2017), the High Court recognized the principle in the context of sensitive personal details. Yet, the challenge lies in balancing this right with legitimate public interests, such as the freedom of the press and the right to information. A broad erasure of data risks rewriting history, while complete denial of the right perpetuates stigma and discrimination. The judiciary’s role is to craft a nuanced framework where dignity and memory coexist.
Privacy and democracy
At its core, privacy is not an individual luxury but a democratic necessity. Without privacy, citizens cannot think freely, dissent fearlessly, or associate without fear of reprisal. A democracy built on constant surveillance risks becoming a democracy in name alone. The judiciary must therefore approach privacy cases not as isolated disputes but as structural safeguards for democratic life.
Conclusion
Privacy in India stands at a crossroads. Surveillance technologies grow more intrusive, data more centralized, and digital memory more permanent. The judiciary must act as the vigilant sentinel, ensuring that state and corporate power do not eclipse individual dignity. Upholding the right to privacy, regulating surveillance, and defining the contours of the right to be forgotten are not just legal tasks—they are constitutional imperatives. For in the trial of privacy, what is really on trial is the future of India’s democracy itself.
