State Surveillance and the Right to Privacy in India: A Constitutional Biography
(2014) 26(2) National Law School of India Review 127
32 Pages Posted: 12 May 2015
Date Written: May 12, 2015
Ever since the explosive Snowden disclosures in May 2013, state surveillance and citizens’ right to privacy have been at the forefront of international debate. Even as the Snowden documents were revealing, detail by detail, the American and British intelligence agencies’ extensive surveillance systems (PRISM and TEMPORA, among others) used to spy both on their own citizens, and upon communications elsewhere, reports about Indian bulk surveillance began to trickle in. It is now known that there are at least two surveillance regimes in India, in uncertain stages of preparation: the Central Monitoring System (CMS), which provides for the collection of telephony metadata by tapping into the telecommunications’ companies records; and Netra, a dragnet surveillance system that detects and sweeps up electronic communication that uses certain keywords such as “attack”, “bomb”, “blast” or “kill”. These programs, wide in their reach and scope, have dubious statutory backing. They also, very clearly, impinge upon basic fundamental rights. A discussion of the legal and constitutional implications, therefore, is long overdue.
This essay presents an analytical and chronological history of the Indian Supreme Court’s engagement with the right to privacy. While discussions for a privacy statute have stagnated and are presently in limbo, the Court has been active for nigh on fifty years. This essay aims to achieve a comprehensive, doctrinal understanding of the constitutional right to privacy, as evolved, understood and implemented by the judiciary. Such an understanding, indeed, is an essential prerequisite to embarking upon a legal and constitutional critique of mass State surveillance in India.
Keywords: mass surveillance, Indian constitutional law, right to privacy
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