THE RIGHT TO PRIVACY IN THE DIGITAL AGE: Recent Judicial Developments in India

Abstract

The Supreme Court's nine-judge decision in K.S. Puttaswamy (Retd.) v. Union of India2 settled, in 2017, the threshold question of whether the Indian Constitution recognises a right to privacy. What this decision could not decide was the operation of such a right within all of the particular contexts generated by the increasing digitisation of Indian society: search decisions that could be searched for indefinitely online, the conditions of bail imposed by means of the use of location tracking software, and message services that use encryption to resist any lawful access. The year 2024 saw all of these questions considered by Indian courts to some extent. In this article I will consider the judicial responses to the issue of the right to privacy in the digital age as decided by Indian constitutional courts in the period of January to December 2024. This analysis will take place along five separate lines of adjudication: the Electoral Bonds case and the treatment of financial privacy; the ongoing jurisprudence of the 'right to be forgotten', emerging from the Madras High Court, the Supreme Court, and the Delhi High Court; the application of the privacy doctrine to bail conditions of location tracking; the ongoing litigation regarding encryption and intermediary traceability obligations; and the judicial response to the phone-tapping in Telangana. A recurring point of reference throughout is that the Digital Personal Data Protection Act, 2023, though enacted, had not been brought into force during the period under review, a fact that shaped, in material ways, the character of the judicial developments discussed below.