Indian Constitutionalism’s Stress Test in the Digital Age, Privacy, Power, and the Courts
The need to insulate from others, nonchalant as it may be, is a time-honoured as hunting. We have yearned for the sense of clandestine enjoyment in harbouring secrets and rejoicing in solitude from the prying eyes of others. Eight decades ago, the “other” was the constabulary that could search and seize at will.
In the constituent assembly in 1948, Ambedkar called privacy a “useful proposition which must be beyond the reach of the legislature.” The digital age is different. When law enforcement goes beyond the threshold of Bentham’s panopticon, retribution for expressing ideas becomes common.
Privacy, until recently, remained neglected by law and abandoned by governments. But, the indispensability of privacy to liberty and dignity, two unmistakable components of our Preamble, always shadowed omissions.
The Long Road to Recognition
Without legislative safeguards, autonomy in speech and expression will be accompanied by censorship and conformity. It took our courts three decades to recognize privacy as a fundamental right.
Until the landmark NALSA judgment that recognised a “third gender,” the Supreme Court (in MP Sharma vs Satish Chandra, 1954 and Kharak Singh vs State of UP, 1963) constantly maintained that the Constitution does not recognise privacy as a fundamental right. For decades, the highest court of the land held that privacy was not protected by the Constitution.
The creation of the Unique Identification Authority of India (which gave us the Aadhaar Card) became the aadhaar (foundation) for discussions on one question: Is the State taking much more away from people for delivering goods and services under Aadhaar-linked welfare schemes? The constitutionality of the Aadhaar project then came under legal challenge.
Seventy years after Independence, KS Puttaswamy vs Union of India, 2017 finally recognised privacy as a fundamental right and set the stage for the Digital Personal Data Protection Act, 2023. The jurisprudential journey was long, the outcome up to scratch, but implementation is still in flux.
The WhatsApp Case
Recklessly, the Supreme Court came down heavily on Meta for WhatsApp’s “take-it-or-leave-it” privacy policy and the misuse of data of Indian users (a fourth of its global base). It quickly caught the eye of the Competition Commission of India. Meta services users felt robbed of the opportunity to allow their personal data to be monetised. Big Tech leaned on the legal fig leaf that clicking “I Agree” equals consent.
WhatsApp is free for users, but the brazen monetisation of personal and behavioural data for advertising was chastised. Chief Justice of India Surya Kant warned that forcing such policies makes “a mockery of the constitutionalism of this country” and will not be tolerated.
The difficulty in making sense of convoluted privacy policies applies as much to social media as to the digital avatars of the government. Do individuals have the ability to exclude themselves (or their information)? Do they have the agency to express selectively in the digital space?
The DPDP Act’s Problems
While these questions remain unaddressed, the long, and sometimes gratuitous, arm of the law continued to poke individual privacy. The DPDP Act has its own share of problems—broad exemptions for national security and public order, lack of independence and autonomy for the Data Protection Board, and sweeping discretionary powers, to name a few.
But, the seeds of mistrust were sown before the Act came to life. When a crucial Bill is tabled for less than an hour in each House of the Parliament, there will be allegations of coercion. When it is discussed with only a handful of Lok Sabha members, it raises a red flag.
When journalists investigating corruption and misuse of public funds are asked to seek consent from the subjects of investigation, it sounds a death knell for participatory democracy. When RTI’s “public interest” safeguard is arbitrarily replaced with a blanket exemption, it curbs press freedom.
The Broader Context
Rampant control of new media has come to symbolise the modern power dynamics. Foucault was right. The ongoing WhatsApp and DPDP cases together form a stress test for Indian constitutionalism in the digital age.
The Court’s ruling will decide not just who governs our data, but who governs our democracy in the digital era. This is not hyperbole. In an age where data is the new oil, where algorithms shape public discourse, where surveillance is omnipresent, the question of who controls information is the question of who holds power.
The Stakes
The stakes could not be higher. If the state can access personal data without oversight, if corporations can monetise user information without meaningful consent, if the line between public and private dissolves entirely, then the very foundations of liberal democracy are threatened.
Privacy is not just about hiding secrets; it is about autonomy, about the ability to think, speak, and associate without fear. It is about the space in which individuals can develop their own identities, form their own opinions, and live their own lives.
Without privacy, liberty becomes conditional. Without privacy, dignity becomes contingent. Without privacy, democracy becomes theatre.
The Path Forward
The courts have a crucial role to play in defining the contours of privacy in the digital age. The Puttaswamy judgment was a landmark, but it was only the beginning. The WhatsApp case will test how far that right extends against corporate power. The DPDP Act will test how far the state can go in the name of security.
But courts cannot do it alone. Parliament must legislate with care, not haste. The executive must exercise its powers with restraint, not abandon. Civil society must remain vigilant. Citizens must demand accountability.
The digital age is new, but the principles are old. Liberty, dignity, autonomy—these are not concepts that change with technology. They are the foundations of constitutional democracy, and they must be protected, online as well as off.
Q&A: Unpacking Privacy and Constitutionalism
Q1: What was the significance of the KS Puttaswamy vs Union of India (2017) judgment?
After decades of judicial reluctance, the Supreme Court finally recognised privacy as a fundamental right under the Constitution. This landmark judgment set the stage for the Digital Personal Data Protection Act, 2023. It overturned earlier rulings from 1954 and 1963 that had held privacy was not constitutionally protected.
Q2: What is the Supreme Court’s concern with WhatsApp’s privacy policy?
The Court came down heavily on Meta’s “take-it-or-leave-it” policy, where users must accept data sharing with all Meta-affiliated companies to use WhatsApp. Chief Justice Surya Kant warned this makes “a mockery of the constitutionalism of this country.” The Competition Commission of India also took cognisance of potential competition harm.
Q3: What are the main problems with the DPDP Act, 2023?
The Act contains broad exemptions for national security and public order, lacks independence and autonomy for the Data Protection Board, and grants sweeping discretionary powers to the executive. Critics also point to the rushed legislative process—the Bill was tabled for less than an hour in each House with minimal discussion.
Q4: How do these issues connect to broader democratic concerns?
When journalists investigating corruption are asked to seek consent from subjects of investigation, when RTI’s public interest safeguard is replaced with blanket exemptions, and when new media is rampantly controlled, it curbs press freedom and participatory democracy. These are not isolated issues but symptoms of broader power dynamics.
Q5: What is at stake in the ongoing WhatsApp and DPDP cases?
Together, these cases form a stress test for Indian constitutionalism in the digital age. The Court’s rulings will decide not just who governs our data, but who governs our democracy. Privacy is essential to liberty and dignity—without it, autonomy in speech and expression is accompanied by censorship and conformity. The digital era demands new protections for old principles.
