Right to Privacy and State Surveillance

The right to privacy protects a person’s body, home, communications, choices and personal information from unjustified state intrusion. The Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017) held that privacy is a fundamental right, principally protected by Article 21 and also connected with other freedoms in Part III.

Constitutional basis

Article 21 permits deprivation of life or personal liberty only through a procedure established by law. Privacy is not absolute, but surveillance cannot rest merely on executive convenience or an unsupported claim of public interest.

• Surveillance may also implicate Article 14 if it is arbitrary and Article 19 if it disproportionately chills speech, association or movement.
• The protection extends to persons, while particular Article 19 freedoms are guaranteed specifically to citizens.

Tests governing surveillance

Under the privacy doctrine developed in Puttaswamy, state intrusion must satisfy legality, a legitimate state aim, proportionality and safeguards against abuse.

• Legality requires the surveillance measure to have a valid legal basis rather than only an executive instruction.
• The state must pursue a constitutionally legitimate aim, such as protecting security or preventing crime.
• Proportionality requires a rational connection between surveillance and its aim, necessity in relation to less restrictive alternatives, and a proper balance between public interest and privacy.
• The governing framework must contain procedural guarantees that limit arbitrary collection, use, retention and disclosure of personal information.

Safeguards and accountability

Because surveillance is usually secret, effective safeguards are central to ensuring that legal powers are not exercised arbitrarily.

• The law should define the competent authority, grounds, scope and procedure for surveillance with sufficient clarity.
• Recording reasons, limiting duration, restricting access, secure handling and independent review help prevent misuse.
• In People’s Union for Civil Liberties v. Union of India (1997), the Supreme Court treated telephone conversations as protected by privacy and required interception powers to operate through law and procedural safeguards.
• Surveillance orders and their enabling law remain subject to judicial review for illegality, arbitrariness and disproportionality.

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