The Surveillance State: Privacy and Criminal Investigation in India: Possible Futures in a Post-Puttaswamy World

Abstract

Indian law, as it stands, arms the State with disproportionate and unchecked power to extract and utilise private information. First, executive discretion to authorise and monitor surveillance is not subject to any independent inter-branch oversight. Second, illegally obtained evidence is usually admissible in courts as long as it is ‘relevant’. In this article, we examine the possible impact on this status quo flowing from the judgments of the Supreme Court of India in KS Puttaswamy v Union of India, (2017) 10 SCC 1 (dealing with the right to privacy) and KS Puttaswamy v Union of India (II), (2019) 1 SCC 1 (dealing with the constitutional challenge to the centralised, biometric-based, unique identity scheme ‘Aadhaar’). We unpack the doctrinal toolkit that these two judgments provide us with, including the standard of proportionality applied, and argue that they offer a framework for testing the existing system of laws governing surveillance. The thread running through our analysis is the judiciary’s role in preserving the rule of law and providing a counterweight to the executive’s power to deploy the State’s surveillance infrastructure. By focusing on individual liberty as a counterweight to State power, we argue that there is now a starting point for insisting on judicial oversight of surveillance action and exclusion of illegally obtained evidence.

Keywords: privacy, surveillance, illegally obtained evidence, exclusionary rule, criminal law, Puttaswamy, Aadhaar, India, Supreme Court, judicial oversight

JEL Classification: K1, K14, K41, K42, Z18