Right to Privacy in the Digital Age: A Constitutional Perspective

Abstract

In the twenty-first century, the right to privacy has evolved from a mere personal expectation into a fundamental constitutional right. With India’s growing dependence on digital technology—ranging from social media, fintech, and e-governance to AI—the boundaries of privacy are constantly being tested. This article examines the evolution of the right to privacy under Indian constitutional law, its recognition in landmark judgments, and the contemporary challenges posed by the digital ecosystem.

Introduction

Privacy, once considered a moral notion rooted in personal space, has now become a legal necessity in a hyper-connected digital world. With citizens sharing enormous amounts of data daily—often unknowingly—questions about data protection, consent, and state surveillance have gained critical significance.

The Indian Constitution, though silent on the term “privacy,” has evolved through judicial interpretation to protect it as an intrinsic part of the right to life and personal liberty under Article 21. The digital transformation of governance and commerce now calls for a delicate balance between individual privacy, technological innovation, and national security.

Evolution of Privacy Jurisprudence in India

The journey of privacy as a fundamental right in India has been gradual and deeply judicially driven.

1. Early Judicial Resistance:

In M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962), the Supreme Court initially refused to recognize 

privacy as a fundamental right, arguing that the Constitution did not explicitly mention it.

2. Judicial Shift:

The jurisprudential shift began with Gobind v. State of Madhya Pradesh (1975), where the Court hinted that privacy could be protected under Article 21, subject to reasonable restrictions.

3. The Landmark Case – Puttaswamy (2017):

The watershed moment arrived with Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), where a nine-judge bench unanimously held that the Right to Privacy is a fundamental right under Article 21. The Court recognized privacy as central to dignity, autonomy, and liberty, making it a cornerstone of personal freedom in a democratic society.

Privacy in the Digital Context

With the rise of the Internet, smartphones, and artificial intelligence, privacy is no longer confined to physical boundaries. Every click, search, and biometric scan leaves a digital footprint.

The Information Technology Act, 2000 and its Rules of 2011 attempt to regulate data collection and protect sensitive personal information. However, these frameworks are often 

criticized for their limited scope and weak enforcement. The absence of a comprehensive data protection law has left citizens vulnerable to misuse of personal data by both state and private entities.

The Digital Personal Data Protection Act, 2023 is a recent step forward. It lays down principles of consent, purpose limitation, and data minimization while establishing a Data Protection Board. Yet, critics argue that the Act grants excessive exemptions to the government under “national interest,” which may weaken accountability.

Balancing Privacy and State Interests

The challenge lies in balancing the individual’s right to privacy with the State’s duty to ensure public order, national security, and efficient governance.

For instance, Aadhaar, India’s biometric-based identity system, has been both celebrated for its welfare efficiency and criticized for privacy violations. In Puttaswamy (Aadhaar) (2018), the Supreme Court upheld the Aadhaar scheme’s constitutionality but struck down provisions enabling its mandatory use by private entities, emphasizing proportionality and necessity as key principles of state action.

The proportionality test, as evolved through Modern Dental College v. State of Madhya Pradesh (2016) and reaffirmed in Puttaswamy (2017), requires that any restriction on privacy must:

Serve a legitimate aim;

·       Be necessary and proportionate; and

·       Have adequate safeguards against abuse.

·       This judicial doctrine now forms the backbone of India’s privacy protection framework.

Contemporary Challenges

1. Mass Surveillance:

Programs like the Central Monitoring System (CMS) and NATGRID, though designed for national security, raise concerns about unchecked surveillance without judicial oversight.

2. Data Monetization:

Social media platforms and e-commerce companies collect vast amounts of personal data, often for targeted advertising. The lack of transparency in data usage threatens informational privacy.

3. AI and Facial Recognition:

Emerging technologies, such as facial recognition and predictive policing, create new ethical and legal dilemmas around consent and profiling.

4. Cybersecurity Threats:

Data breaches and ransomware attacks have exposed the vulnerability of digital infrastructure, emphasizing the need for stronger cyber laws and institutional capacity.

Way Forward

For privacy to remain meaningful in the digital age, India needs a robust and independent Data Protection Authority, clear definitions of “reasonable surveillance,” and mandatory transparency standards for both state and private actors.

Public awareness about data rights and digital literacy must also be enhanced. The judiciary must continue to play a proactive role in interpreting privacy in evolving contexts—such as artificial intelligence, health tech, and fintech ecosystems.

Ultimately, the right to privacy is not an obstacle to governance but a foundation of democratic legitimacy. Citizens should not have to choose between freedom and security, but rather enjoy both through fair, accountable, and rights-based digital governance.

Conclusion

The recognition of privacy as a fundamental right in Puttaswamy transformed India’s constitutional landscape. Yet, the digital revolution has created fresh complexities that test this right every day.

As India moves towards becoming a data-driven economy, the Welfarist State must also evolve into a privacy-respecting State, ensuring that individuals retain control over their personal information. The true measure of a democracy lies not only in the protection of majoritarian interests but also in safeguarding the silent, invisible rights—of which privacy remains the most essential.

Footnotes

1. M.P. Sharma v. Satish Chandra, AIR 1954.

2. Kharak Singh v. State of Uttar Pradesh, AIR 1963.

3. Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148.

4. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017).

5. The Constitution of India, Art. 21.

6. Information Technology Act, No. 21 of 2000, INDIA CODE (2000).

7. Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, Gazette of India, June 13, 2011.

8. Digital Personal Data Protection Act, No. 22 of 2023, INDIA CODE (2023).

9. Justice K.S. Puttaswamy (Aadhaar) v. Union of India, (2019).

10. Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016).

This article is authored by Shristi Singh, who was among the Top 40 performers in the Quiz Competition on International Human Rights organized by Lets Learn Law.