CHAPTER - 1
INTRODUCTION
The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
CHAPTER-1
INTRODUCTION
Privacy is a condition of life decisive for the exercise of liberty, autonomy
and enjoyment of dignity.1 It can be considered as an “aura” around one or more
individuals constituting the frontier between themselves and the outside world.2
However, articulation of the essence of privacy is not easy. This is because a
multi-faceted concept as it is, the meaning and boundaries of privacy are set by
the socio-political context wherein it is sought to be exercised. Initially, the
concept was accepted more as a value than as a right. It was through a long-drawn
process of evolution that the utility of this societal value in “galvanizing the legal
system into recognizing and contesting specific threats to freedom…by those in
possession of economic or governmental power”3 was recognized. As a right,
privacy was initially described as non-interference with one‟s affairs, choices and
expressions or as the „right to be let alone.‟4 However, of late it was conceived to
include positive elements such as the right to maintain privacy in social relation-
ships outside the private zone and to exercise control over the dissemination and
use of personal information. Still such definition could not encompass the various
dimensions of this right effectively. The further attempts to provide an intelligible
and incontestable conceptual justification to define privacy as a right were also
not successful.5
1 See generally, Her Majesty, The Queen v. Brandon Roy Dyment, [1988] 2 SCR 417. The
idea of a “private space in which a man may become and remain „himself‟” can be
attributed to the concept of privacy. See Herbert Marcuse, One-Dimensional Man 10
(Beacon Press, Boston, 1964). See also Milton R. Konvitz, “Privacy and the Law: A
Philosophical Prelude” 31 Law and Contemporary Problems 272 (1966).
2 Adrienn Lukács, Protection of Employees’ Right to Privacy and Right to Data Protection
on Social Network Sites – With Special Regard to France and Hungary (2020)
(Unpublished Ph.D. Thesis, Panthéon-Sorbonne University) available at
[Link] download/pdf/ [Link] (last visited on May 1, 2022).
3 Clark C. Havighurst, Privacy: Foreword, 31 Law and Contemporary Problems 251
(1966).
4 Samuel D. Warren, Louis D. Brandeis, “The Right to Privacy” 4 Harvard Law Review
193, 195 (1890).
5 See Daniel J. Solove, “Conceptualizing Privacy” 90 California Law Review 1087-1155
(2002).
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
In short, privacy, though an age-old virtue, has its silhouette shaped with
the evolution and progress of society. Advancement in technology, transformation
of socio-political outlook, reshaping of economic values and change of ideologies
have contributed to the altering of substance and reshaping of the contours of the
right. If in the past the threats to privacy were from fellow members of the
society in the form of eaves dropping or gossiping, in the modern world it
gradually gave way to interference by the media persons and the state. The
breakthrough in the field of technology that commenced with the invention of
telephone and camera in the 1800s which reached its zenith with the development
of the digital technology has simplified communication and transfer of
information. This had its profound impact on the right to privacy. The onset of the
digital era in the 1950s and its full blooming in the 21st century, bringing forth
advances in technology including “computing, databases, the Internet, mobile
communications, and the like,” has drastically changed the landscape of privacy. 6
No doubt, the technological advancements have opened up new vistas of freedom
and more platforms to exercise them.7 The finest example for this is the
unparalleled development in the realm of communication technology that easily
surpasses the difficulties posed by distance, time and language. However,
technological revolution has facilitated intrusion into the sacred precincts of the
right to privacy in an unprecedented manner. This threat is all the more serious
when sovereign authorities make use of such technology for maintaining security
of the state. Small wonder, this has led to the demand for modulating the power of
the state in using digital technology so as not to intrude into the right to privacy.
This in its turn necessitated the revision of existing laws and adequate reforms for
protecting the right to privacy. In short, it could be said that “the story of privacy
law is a tale of changing technology and the law‟s struggle to respond in effective
ways.”8
6 Will Thomas DeVries, “Protecting Privacy in the Digital Age” 18 Berkeley Technology
Law Journal 283, 285 (2003).
7 Juliane Damen, Lena Kohler, [Link]., “The Human Right of Privacy in the Digital Age”
Staat, Recht und Politik — Forschungs- und Diskussionspapiere, [Link].1 (2017) available
at [Link]
[Link] (last visited on May 29, 2022).
8 Daniel J. Solove, The Digital Person: Technology and Privacy in the Information Age 33
(New York University Press, New York, 2004).
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
India is no exception to this trend as it also is using these technologies in the
interest of security and governance. Though the legal order in India was slow to
recognize privacy as a fundamental right, the concept has permeated almost all
walks of social life. Now the right has been acclaimed as a “constitutional value
which straddles across the spectrum of fundamental rights and protects for the
individual a zone of choice and self-determination.”9 However, it is true that in a
country which recognizes entrenched rights, as any other fundamental right, the
right to privacy also is not absolute. It will be restricted in situations where other
„more compelling interests‟ are to be protected. Hence, in assessing its signifi-
cance, privacy essentially is weighed against countervailing values. The need for
containing terrorism and bringing other crimes under control has necessitated state
interference with the right to privacy of individuals. Maintenance of law and order
in the era of international terrorism requires an enormous amount of information
gathering. Consequently, measures like targeted surveillance indispensable for
maintenance of law and order and criminal investigation have now transformed as
surveillance of large masses even in normal situations. Such a development leads
to a situation in which the right to privacy yields to the requirements of the
government to gather information. Needless to say, this causes trading off
between the values of privacy and security which are often at loggerheads.
Emergence of the era of welfare state has substantively changed the role of
the state as an administrator. Apart from the wielding of sovereign functions, it
has turned to be a service provider to the people. This necessitated collection and
storage of enormous information on the ground of equitable distribution of wealth.
The burgeoning of digital technology enabled the state to collect, store, retrieve
and process large volumes of personal information facilitating the preservation of
the minutia of our everyday coming and going, our likes and dislikes, of who we
are and what we own.10 Such an extensive collection of information about citizens
by the state could be used for causing adverse impact on their lives. Such a state
of affairs coupled with the lack of awareness among the common people about the
9 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, 499. Hereinafter
referred to as Puttaswamy I.
10 Ibid.
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
importance of the right to privacy precludes them from questioning the measures
that intrude into their privacy. It may not be wrong to conclude that in such a
situation the government which is vested with the duty to safeguard the privacy
right of the people has turned to be the greatest threat to it. Such a gradual
transformation of the nature of the state may even make a democratic state an
authoritarian one11 so as to enable it to exercise an unlimited power of
surveillance over its people. A liberal constitution that intends to protect the
interests of the people would become a battleground between the rights of
individuals on the one hand and the obligation of the welfare state to protect them
on the other.
In such a situation a detailed analysis of the practices of the government to
maintain security and to pursue governance and their impact on the right to
privacy of the people becomes highly essential to draw out a benign balance
between them. The boundaries of reasonable expectations of privacy need to be
redrawn after balancing the right against the transformation facilitated by the
modern technologies. Otherwise, the normative standards that are primary to such
expectations shall be worn out and destroyed.12
The radical advancement of science and technology in the 20th century has
made a telling impact on the individualistic notion of privacy formulated in the
19th century. Making the Aristotelean concept of public-private dichotomy13
insignificant,14 the right to privacy has attained a social dimension. For, under the
11 See Jack M. Balkin, “The Constitution in the National Surveillance State” 93 Minnesota
Law Review 1 (2008).
12 R v. Rudiger, 2011 BCSC 1397 at para. 117.
13 The public-private dichotomy was conceived for the first time by Aristotle by
distinguishing families from communities. For detailed discussion see Jurgen Habermas,
The Structural Transformation of the Public Sphere: An Inquiry into a Category of
Bourgeois Society (Thomas Burger trans., Polity Press, 1992) and Judith A. Swanson, The
Public and the Private in Aristotle’s Political Philosophy (Cornell University Press,
Ithaca, 1992). See also Chris Berg, The Classical Liberal Case for Privacy in a World of
Surveillance and Technological Change 29 (Palgrave Macmillan, Switzerland, 2018).
This divide can be treated as the early recognition of a “confidential zone on behalf of the
citizen” wherein even the government is not free to intrude upon. See Michael C. James,
“A Comparative Analysis of the Right to Privacy in the United States, Canada and
Europe” 29 Connecticut Journal of International Law 261 (2014).
14 See Rosamund Scott, Rights, Duties and the Body 195-97 (Hart Publishing, Oxford-
Portland Oregon, 2002).
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
existing technologically advanced context, the private sphere is always encircled
by the public sphere. Private information is constituted, managed and stored in a
social environment. Thus, the protection of privacy has become an issue having
social and political dimensions. The emergence of information technology
resulted in specific groups being confronted with the erosion of their privacy. It is
in this state of affairs that a discussion as to the meaning, scope and dimensions of
the right to privacy assumes significance. It calls for an examination of the
constitutionally entrenched right to privacy, the countervailing state interests and
the scope and extent of reasonable restrictions on it. A reformulation of the notion
of privacy to adapt it to the changing technologies also becomes imperative.
It is in the above circumstances that the present research is focused on the
concept of the right to privacy and its protection under the current legal regime in
India. The study is in the backdrop of the governmental policies and practices to
ensure security and good governance which affect the right to privacy enjoyed by
the people. The thesis emphasizes on balancing the competing claims of privacy
and state interest in the digital age. For enabling such a discussion, a conceptual
understanding of the right to privacy attuned to the digital age becomes essential
so as to study how far protection could be extended to it.
1.1 Scope of the Study
The modern technological advancements open two sources of threat to the
right to privacy. The primary one is the technology-enabled surveillance of the
masses in the interest of security. Ever since the Snowden disclosures in 2013,15
there emerged a global concern regarding the extent and necessity of such
technology-enabled surveillance by the state. In India, the terrorist attacks in 2008
gave momentum to the government to adopt measures of mass surveillance. But
15 In 2013, Edward Joseph Snowden, a former American intelligence contractor who
worked in the National Security Agency (NSA) leaked information about the secret
global mass surveillance programmes undertaken by NSA in co-operation with the
European Government and other agencies. This evoked serious discussions on the issues
of privacy of the individual and security of the state, all across the world. See generally
Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S.
Surveillance State (Metropolitan Books, New York, 2014). See also David Lyon,
“Surveillance, Snowden, and Big Data: Capacities, Consequences, Critique” Big Data &
Society 1-13 (2014).
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
adoption of such measures was without addressing the issue as to how it would
affect the protection of the right to privacy. The second is the state initiative for e-
governance that compels the citizens to provide much of their personal details.
Availability of technology for easy retrieval and analysis of the data so collected
aggravates the gravity of the threat to privacy particularly in the absence of a
robust framework for data protection.
This trend of collecting personal data for the projected state interests in
security and e-governance continued even after the declaration of the right to
privacy as a fundamental right by the Supreme Court in 201716 without
configuring the opportune safeguards to prevent intrusion into the right. Many of
these measures are not divulged to the public for reasons of national security and
hence the people are kept in dark regarding the possible impact on their individual
rights and liberties. Even if the people are made aware of the measures of the
government, little could they appreciate the impact on the right to privacy and on
other basic rights and entitlements. This is due to the lack of understanding
regarding the significance of the right in their daily lives which is a pre-requisite
for the enjoyment of civil liberties.
In such a context, examination as to the potential threat that can be caused
to our fundamental rights by the inordinate application of digital technologies
become highly relevant. A discussion on the problems posed by mass surveillance
and e-governance initiatives and their impact on the right to privacy in the
backdrop of the existing regulatory regime is warranted. Similarly, the extensive
use of personal data by the government obtained through surveillance or as part of
e-governance, facilitated by the onset of digitization and the implications of
unregulated profiling of individuals by the state using the techniques of data
analytics are indeed scary. This necessitates discussion on data protection as an
aspect of the right to privacy.
16 Supra note 9.
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
In such a background, the thesis studies the nature, meaning, scope and
extent of the right to privacy, its evolution as a stand-alone right and the scope of
restrictions that can be imposed on it. The study is limited to three areas where the
agencies of the state, in the exercise of sovereign functions,17 intrudes into privacy
on a mass scale using digital technology viz., public space, communications and
electronic transactions. By public space is meant the space where the state is able
to monitor and collect the data relating to individuals without their knowledge or
permission. The thesis further probes into the digital technology-enabled state
access into communications through the phone, internet and state-sponsored
transactions through electronic or digital services as part of e-governance and
Digital India initiatives.
1.2 Objectives of the Study
The main objectives of the study are as follows:
1. To discuss and understand the meaning, scope and extent of the right
to privacy under the Constitution of India with special emphasis on its
significance in the digital age.
2. To deliberate upon the nature and legitimacy of restrictions on the
fundamental right to privacy in the context of state sponsored use of
digital technology to secure its interests.
3. To portray the measures of mass surveillance over public spaces and
communications adopted by the Government of India in the interest of
security of the state and to study its impact on the right to privacy.
4. To examine and evaluate the initiatives for e-governance by the state
and its repercussions on informational privacy.
17 Over and above the functions of a police state, viz., maintenance of law and order,
administration of justice and collection of tax, in the wake of art. 39 of the Constitution of
India the equitable distribution of wealth is also considered as a feature of sovereign
function. See Sub-Divisional Inspector of Post, Vaikam v. Theyyam Joseph, 1996 (8) SCC
489. See also W. Friedman, The State and the Rule of Law in a Mixed Economy 3
(Stevens & Sons, London, 1971).
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
5. To examine and analyze the existing regulatory regime over
surveillance and data protection and to find out whether the Indian
legal system has evolved adequate measures to protect the right to
privacy against encroachment by the state in the digital age, and
6. To suggest measures to strengthen the right to privacy in the backdrop
of the state exercising digital technology-enabled power to intrude
into it.
1.3 Research Questions
The questions that were addressed in the course of the research are as
follows:
1. What is the meaning of the concept „privacy‟?
2. What is the role played by technology in levelling up privacy from
being a value to a fundamental right?
3. How the right to privacy is conceptualized in India by the Judiciary?
How far can such a conceptualization cater to the demands of the
digital age?
4. Which are the tests formulated by the judiciary to examine the validity
of the laws or measures burdening the fundamental rights? How such
tests were applied in case of violation of the right to privacy?
5. What is the role played by digital technology in balancing of the right
to privacy and the interest of the state with special reference to mass
surveillance over public spaces, communications and e-governance?
6. What is the meaning and scope of „national security interest‟ to be
used as a pressing ground for the state to indulge in mass surveillance?
7. How far the existing laws in India are capable of protecting the right
to privacy of individuals against state intrusion by use of digital
technology in the realms of public spaces, communications and e-
governance?
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
8. How far has the legislature been successful in making a data
protection framework for India so as to protect informational privacy
in a digital economy?
9. What is the way forward to ensure that the state use of digital
technology is balanced against the right to privacy of individuals in
the areas of mass surveillance over public spaces, communications
and e-governance?
1.4 Methodology and Sources of Data
The study is doctrinal and analytical in nature. The methodology
comprises of analysis of theories and case law. Historical method is also resorted
to. The primary materials relied upon include the judicial decisions pertaining to
the area of research, statutes, rules and regulations, legislative proposals,
governmental reports, committee reports, international documents and reports,
press releases, studies and surveys conducted by governmental and non-
governmental agencies. However, secondary materials like books and various
articles in journals, newspapers and e-resources and other academic materials are
also relied upon for the comprehensiveness of the research. While examining the
scope of the right and its restrictions in the Indian context, comparison has been
made to the contribution of the U.S. and English legal systems wherever
necessary. Footnote references are in compliance with the citation style
formulated by the Indian Law Institute, New Delhi.
1.5 Hypotheses
The right to privacy has ever been facing threats from sovereign
authorities. The quantum leap in the field of technology in the digital age has
aggravated this threat the right has been facing ab initio. The Government of
India, with the aid of modern technologies is encroaching into the privacy of
individuals without adequate legal backing, proper oversight or control. Such
encroachment is massive in the realms of public spaces, communications and e-
governance. It results in a chilling effect as far as the exercise of civil liberties are
concerned, facilitates discrimination, annihilates dissent and imposes a scary
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
homogeneity on behaviour, all of which are insalubrious for the functioning or
even survival of democracy. There is an imbalance between the using of modern
sophisticated technology for conducting mass surveillance over public spaces,
communications and e-governance by the State on the one hand and the right of
the individuals to privacy on the other. Undoubtedly, using of technology by the
state is unavoidable not merely for its survival and but also for the protection of
the life and rights of the people. At the same time, the state has a duty to ensure
that such using of technology does not make inroads into the rights of the people.
There is a need for a benign balance between the interest of the state and the rights
of the people. Unfortunately, such a balancing is absent in the case of the right to
privacy. The existing regulatory framework over surveillance is fraught with
inadequacies, particularly in matters of mass surveillance. The models of e-
governance adopted by the state compels the citizen to provide much of his
personal data to the government and the absence of a data protection law adds on
to the injury as far as the access and control of the collection and storage of such
data is concerned. The proposal for reforming the law for data protection regime
neither addressed the issues of encroachment by the state into the right to privacy
of its people nor did it envisage adequate safeguards against the same. In short,
the Indian legal system does not adequately address the issues and threats the right
to privacy faces in the digital age from the development and use of technology by
the state.
1.6 Scheme of the Study
The study focuses on the right to privacy of the individual, its meaning,
significance and extent in the digital age under the Indian legal system. The study
intends to examine violations of the right caused due to the insufficiency of legal
safeguards against the indiscriminate use of modern sophisticated technology in
the areas of surveillance and e-governance by the state. The thesis comprises of
nine chapters inclusive of the introduction and conclusion.
Chapter 1 is the general introduction and details upon the objectives and the
scope of the study.
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
Chapter 2 examines the meaning, nature and elements of privacy as a
concept and the theoretical underpinnings of the same as a right. The chapter
further probes into the contemporary relevance of the right and addresses the
dilemma in conceptualizing it. It depicts the key values that are protected by the
right to privacy by studying the privacy traditions set by the German and
American legal systems. The chapter also throws light on the various ramifi-
cations of the right and theories of privacy developed by scholars which would
help in ascertaining the extent of the right to privacy in the digital era.
Chapter 3 focuses on the evolution of the right to privacy in England and
America. The perception of the concept as a value by the community and its
gradual upgradation as a right by the legal system are examined. It portrays how
the judiciary got over its earlier reluctance and brought out a stand-alone right to
privacy under the common law in response to the technological advancements.
The similar journey by the judiciary in the U.S. that culminated in the recognition
of a fundamental right to privacy is also examined by studying the developments
in the pre-constitutional and post-constitutional eras. The chapter delineates the
further development of the right to privacy in America necessitated in the context
of the digital age.
Chapter 4 elucidates how privacy was conceived by the Indian society and
examines the views of the framers of the Constitution on the subject. Further, it
traces the journey of the Supreme Court of India in carving out the fundamental
right to privacy as part of personal liberty under article 21 of the Constitution. In
the process, the chapter highlights the different dimensions of the right and
examines how it came to be regarded as an ingredient of the right to life. It also
examines how the judiciary dealt with certain novel issues relating to the right to
privacy emanating from the state-sponsored use of digital technology.
Chapter 5 probes into the concept of restrictions on fundamental rights
with special reference to the right to privacy and the grounds for such restrictions.
In this endeavour, the chapter explores the tests developed by the judiciary to
determine the legality of the restrictions for circumscribing the scope of
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
fundamental rights. The chapter also depicts how these tests were applied by the
courts in privacy cases.
Chapter 6 focuses on mass surveillance over public spaces by the state. It
examines the meaning of surveillance and categorizes the same on the basis of the
subject matter and methodology adopted by the state agencies. The chapter further
explores the features of privacy associated with the concept of public spaces and
the significance of such spaces for the exercise of civil liberties. It also analyzes
the new modes of mass surveillance over public spaces including CCTV cameras,
GPS and drones which, when coupled with biometric and other technologies
circumvent the privacy protections afforded by the open spaces resulting in the
denial of anonymity and other privacy expectations. The chapter further examines
whether digital surveillance over public spaces could be brought within the
purview of search by law enforcement agencies so as to be limited by the
provisions governing it.
Chapter 7 deals with the practices adopted by the state to conduct mass
surveillance over communications and its repercussions on the communicational
privacy of individuals. The chapter explains the right to communicate and its
interface with the right to privacy and also the regulatory regime in India over
communications surveillance. Further, the chapter probes into the new projects of
mass communication surveillance of the Government of India like the Central
Monitoring System (CMS) and NETRA and the legal challenges against them.
The chapter also attempts to elucidate the implications of initiating surveillance
regimes for securing the „national security interest‟ which has not so far been
properly defined. The parameters suggested at the international level to restrict the
use of „national security‟ as a ground for circumscribing fundamental rights are
highlighted so as to see whether such measures adopted by the government are
proportionate to the intended objective of security. The chapter also includes an
examination of the concept of reasonable expectation of privacy in the social
media as well as in the metadata of communications.
Explaining the positive role played by the state in facilitating e-governance
and providing online access to the common people, chapter 8 examines how the
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The Right to Privacy in the Digital Age: A Study with Special Reference to
Mass Surveillance and e-Governance in India
process of large-scale collection, storage and analysis of personal data necessary
for providing the above services, pose a potential threat to the right to privacy.
Underlining the need for a robust data protection framework in India, the chapter
analyzes the U.K. and U.S. positions and examines the legislative initiatives in
India in this regard.
Chapter 9 is the conclusion. It also puts forth the suggestions for bringing
out a benign balance between the privacy rights of individuals and the mainte-
nance of the state interest.
13