Privacy and Surveillance: A Constitutional Conundrum of Essence of Right and Justification for its Denial

Ira Kumar
Symbiosis Law School, Pune, India.

Volume III, Issue VI, 2020

With the growing threats to national security, interest etc. often measures are adopted by the state to address these concerns by intercepting information, placing the privacy of citizens at a risk. While the technological revolution already continues to threaten people’s privacy, surveillance further reduced the notion of ‘privacy’ to a myth.

This paper seeks to resolve the constitutional obfuscation of privacy as a constitutional right and surveillance by state as a reason for its breach. The paper first traces the evolution of the concept of privacy in India and in US, both jurisdictions where the constitutional right of privacy is a result of judicial construct. It then examines the essence of privacy as a right as it exists in India and the US by delving into the interpretation of ‘privacy’ and statutory provisions supporting privacy in both the jurisdictions. The paper analyses the conflict between surveillance and privacy by examining the surveillance laws in India and US. The paper highlights the existing judicial safeguards which if extended to all surveillance measures, create a model surveillance framework that serves the interest of national security perfectly and also limits the extent of surveillance to only that which is justifiable. The paper also examines the Personal Data Protection Bill,2019 and its potent role in reconciling privacy and surveillance.