Right to privacy in the era of Artificial Intelligence

Introduction: Artificial Intelligence and the Privacy Challenge

Artificial intelligence has quietly become one of the most powerful forces shaping modern society. It does not arrive with dramatic announcements or visible warnings. Instead, it enters daily life slowly and almost invisibly. A person unlocking their phone using facial recognition, a commuter navigating traffic through a location-based application, or a social media user receiving advertisements that strangely reflect their recent conversations; all of these are everyday examples of artificial intelligence at work. While these technologies are often presented as tools of convenience, efficiency and progress, they are deeply dependent on the continuous collection and analysis of personal data. This dependence has brought the right to privacy into serious legal and ethical debate, especially in a country like India where digital expansion is happening at an unprecedented pace.

The idea that privacy could be compromised in the name of technological advancement is not entirely new. However, artificial intelligence changes the scale and intensity of this compromise. Unlike earlier forms of technology, AI systems do not merely store data; they learn from it, predict behaviour and influence decisions. This raises a fundamental concern  whether individuals still retain meaningful control over their personal information and choices. In a constitutional democracy that claims to value dignity, liberty and autonomy, this question cannot be ignored.

Evolution of the Right to Privacy under the Indian Constitution

Privacy today is no longer limited to physical spaces such as homes or personal belongings. It has expanded into the digital sphere, covering online behaviour, communication patterns, biometric data, preferences and even emotional responses. Artificial intelligence thrives on this expanded notion of data. Every digital interaction leaves behind a trace, and over time these traces combine to form detailed digital profiles of individuals. Most people are unaware of how detailed these profiles are or how widely they are shared. This lack of awareness itself is troubling, because a right that is not understood or exercised meaningfully is at risk of becoming merely symbolic.

The right to privacy has not always been treated as an essential constitutional value in India. The Constitution does not explicitly mention privacy, and for several decades, the judiciary was reluctant to recognise it as a fundamental right. In the early cases such as M.P. Sharma v. Satish Chandra, the Supreme Court took a narrow view and held that privacy was not protected under the Constitution. Similarly, in Kharak Singh v. State of Uttar Pradesh , although the Court struck down domiciliary visits, it refused to acknowledge a broader right to privacy. These judgments reflected a formal and literal approach to constitutional interpretation, where rights were recognised only if they were clearly stated in the text.

Over time, however, the judiciary began to realise that such a narrow interpretation was insufficient to protect individual liberty in a changing society. The decision in Maneka Gandhi v. Union of India marked a significant shift by expanding the scope of Article 21 and emphasising that personal liberty cannot be restricted except through a fair, just and reasonable procedure. This broader understanding opened the door for recognising unenumerated rights that are essential to a dignified life. Subsequent cases like Gobind v. State of Madhya Pradesh and R. Rajagopal v. State of Tamil Nadu gradually acknowledged privacy interests, particularly in relation to surveillance and media intrusion. Yet, despite these developments, the constitutional status of privacy remained uncertain.

Constitutional Recognition of Privacy: The Puttaswamy Judgment

This uncertainty was finally resolved in 2017 with the landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India. A nine-judge bench of the Supreme Court unanimously held that the right to privacy is a fundamental right protected under Articles 14, 19 and 21of the Constitution. The judgment was significant not only because it recognised privacy but also because it explained why privacy matters. The Court linked privacy to dignity, autonomy and the ability of individuals to make meaningful choices about their lives. It also rejected earlier decisions that denied constitutional protection to privacy, thereby correcting a long-standing inconsistency in Indian constitutional law.

What makes the Puttaswamy judgment particularly relevant in the age of artificial intelligence is its recognition of informational privacy. The Court acknowledged that in a digital society, control over personal data is an essential aspect of privacy. It also laid down a three-fold test for determining whether a restriction on privacy is constitutionally valid. According to this test, any infringement must be supported by law, pursue a legitimate state aim and satisfy the requirement of proportionality. This framework provides an important tool for examining AI driven data collection and surveillance practices.

Informational Privacy and the Limits of Consent in the Digital Age

Despite this strong constitutional recognition, the practical reality of privacy protection in India remains weak. Artificial intelligence systems depend on massive amounts of data to function effectively. In most cases, this data is collected through digital platforms that users interact with daily. Consent is usually obtained through lengthy terms and conditions, which are rarely read or understood. This raises a serious question can consent be considered meaningful when individuals have no real choice but to accept these conditions in order to access essential services? This so-called consent appears more like a formality than a genuine exercise of free will. Artificial Intelligence, Profiling, and Decision-Making

Artificial intelligence also enables profiling on a scale that was previously unimaginable. By analysing behaviour, preferences and past actions, AI systems can predict future behaviour with alarming accuracy. These predictions are then used to influence decisions related to employment, education, and even policing. When such decisions are based on unclear equations, individuals are left without any real explanation or remedy. This creates a situation where people are judged not as individuals but as data points, which undermines both equality and autonomy.

State Surveillance, Aadhaar, and AI-Driven Governance

The use of artificial intelligence by the State for surveillance purposes further intensifies privacy concerns. Facial recognition systems, predictive policing tools and data analytics are increasingly being deployed in public spaces. While the State often justifies these measures on grounds of national security and public order, there is very little transparency about how these systems operate or how long the data is retained. In a democracy, surveillance should be the exception, not the norm. Constant monitoring creates a chilling effect on free speech, as individuals may hesitate to express themselves freely when they feel they are being watched. India’s experience with the Aadhaar project illustrates the dangers of large-scale data collection. While Aadhaar was introduced as a tool to improve welfare delivery, it also raised serious concerns about biometric data security and surveillance. In the Aadhaar judgment, the Supreme Court upheld the constitutional validity of the project but imposed important limitations. The Court recognised that unrestricted use of biometric data could lead to mass surveillance and profiling. It restricted the use of Aadhaar by private entities and emphasised the need for data protection. However, even these safeguards appear inadequate in the face of rapidly advancing AI technologies. Decisional Autonomy and Privacy Beyond Data Protection

Another important aspect of privacy that is often overlooked in discussions about artificial intelligence is decisional autonomy. Privacy is not only about protecting data; it is also about protecting the ability to make personal choices without undue interference. After recognising privacy as a fundamental right, the Supreme Court relied heavily on this principle in cases like Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India. These judgments affirmed that personal choices related to identity, relationships and intimacy are protected by the right to privacy. In an AI-driven world where personal behaviour can be monitored and analysed, protecting decisional autonomy becomes even more important.

Legislative Response: The Digital Personal Data Protection Act, 2023

The legislative response to privacy concerns in India has been slow and insufficient. The Digital Personal Data Protection Act, 2023 was introduced as a step towards regulating data processing and protecting individual rights. However, the Act has been criticised for granting wide exemptions to the State and lacking strong enforcement mechanisms. This has been criticised as, a data protection law that allows extensive government exemptions risks undermining the very right it seeks to protect. In the context of artificial intelligence, where data misuse can have far reaching consequences, such weaknesses are particularly concerning.

It is often argued that strict privacy regulations may hinder technological innovation and economic growth. This argument is frequently used to justify extensive data collection and surveillance. However, this reasoning is flawed. Development that comes at the cost of fundamental rights cannot be considered true progress. In fact, ignoring privacy concerns may ultimately reduce public trust in technology, making people more reluctant to engage with digital systems. Privacy should not be seen as an obstacle to innovation but as a condition for ethical and sustainable technological development. The debate around privacy and artificial intelligence highlights a deeper issue the imbalance of power between individuals and institutions. Large corporations and governments possess advanced technologies and vast resources, while individuals are left with limited knowledge and control. This imbalance makes it difficult for individuals to protect their privacy effectively. Law, therefore, has an important role to play in correcting this imbalance and ensuring that technological power is exercised responsibly.

The relevance of the right to privacy in the era of artificial intelligence lies not only in protecting individuals from harm but also in preserving democratic values. A society where individuals are constantly monitored and profiled is less likely to encourage free thought, creativity and dissent. Privacy provides the space necessary for individuals to form opinions, express themselves and participate meaningfully in democratic processes. Without privacy, freedom becomes fragile.

As artificial intelligence continues to shape governance, education, employment and social interaction, the challenges to privacy will only increase. Recognising privacy as a fundamental right is an important first step, but it is not sufficient on its own. Strong legal safeguards, independent oversight and public awareness are equally necessary.

Corporate Surveillance, Algorithms, and Freedom of Expression

One aspect of the privacy debate that deserves greater attention is the role of private corporations in shaping the data ecosystem. While state surveillance often attracts criticism, corporate surveillance is equally intrusive, if not more subtle. Technology companies collect personal data on a scale that governments often cannot achieve independently. Social media platforms, search engines, online marketplaces and educational applications constantly monitor user behaviour. This information is then used not only to improve services but also to influence choices, opinions and consumption patterns. In many cases, users are unaware that their data is being monetised in ways that directly affect their autonomy.

Artificial intelligence strengthens this corporate power by allowing companies to predict user behaviour with increasing accuracy. Recommendation algorithms decide what content is visible and what remains hidden. Over time, this creates what is often described as a “filter bubble”, where individuals are exposed only to information that aligns with their existing beliefs.
From the provisions of constitution, this raises concerns about freedom of thought and expression. When choices are subtly shaped by algorithms, the line between persuasion and manipulation becomes blurred.
Artificial Intelligence in Education, Workplace, and Law Enforcement

Another area where privacy concerns become visible is education. With the rise of online learning platforms, student data is increasingly collected and analysed. Attendance patterns, performance metrics, behavioural data and even facial expressions during online classes are monitored using AI- based tools. While these technologies are introduced in the name of efficiency and assessment, they raise serious questions about consent and proportionality. Students often have no choice but to use these platforms, making consent effectively compulsory rather than voluntary. This situation highlights the unequal power relationship between institutions and individuals, particularly young users who may lack awareness of their rights.

Workplace surveillance is another growing concern. Employers are increasingly using AI tools to monitor productivity, track employee behaviour and assess performance. In remote working environments, software may track keystrokes, screen activity and time spent on tasks. While employers argue that such monitoring is necessary for efficiency, it often intrudes into the personal space of employees. This kind of constant monitoring can create stress, reduce autonomy and blur the boundary between professional and personal life. Indian labour laws have yet to adequately address these concerns, leaving employees with limited protection. The use of artificial intelligence in law enforcement further complicates the privacy debate. Predictive policing tools claim to identify crime-prone areas or individuals likely to commit offences. However, these systems are trained on historical data, which may reflect existing social biases. As a result, AI systems may reinforce discrimination rather than eliminate it. When such tools operate without transparency or accountability, individuals may be subjected to increased surveillance simply because they belong to certain communities. This raises serious constitutional concerns under Articles 14 and 21.

Transparency, Explainability, and Principles of Natural Justice

A critical issue with AI-based decision-making is the lack of explainability. Many AI systems operate as “black boxes”, meaning that even their developers cannot fully explain how decisions are made. When such systems are used to determine access to welfare benefits, employment opportunities or public services, individuals may be denied rights without any clear reasoning.

This lack of transparency directly conflicts with principles of natural justice. Privacy, in this context, is closely linked to the right to know and the right to challenge decisions that affect one’s life.

Comparative Perspective: Global Approaches to AI and Privacy

The international perspective on privacy and artificial intelligence also offers valuable insights. Jurisdictions such as the European Union have adopted stronger data protection frameworks, recognising privacy as a fundamental right. The General Data Protection Regulation places strict obligations on data controllers and grants individuals greater control over their data. While India’s legal and social context is different, these developments demonstrate that strong privacy protection is not incompatible with technological innovation. Instead, it can promote responsible and trustworthy use of AI. Public awareness plays a crucial role in strengthening privacy protection. Many individuals willingly share personal information without fully understanding the consequences. This culture of data- sharing has normalised surveillance to an extent that privacy violations often go unnoticed.

The judiciary will continue to play a vital role in shaping privacy jurisprudence in the AI era. Courts must adapt constitutional principles to new technological realities. This requires not only legal expertise but also an understanding of how AI systems function. Judicial review of AI-based practices should focus on transparency, accountability and proportionality. Blind acceptance of technological claims by the State or corporations risks undermining fundamental rights. It is also important to recognise that privacy protection is not about rejecting technology altogether. Artificial intelligence has the potential to improve healthcare, education, governance and public services. However, these benefits must be balanced against the risks to individual freedom. The challenge lies in ensuring that AI serves as a tool for empowerment rather than control. This balance can only be achieved if privacy is treated as a core constitutional value rather than an afterthought.

From an ethical standpoint, the debate around privacy and artificial intelligence raises questions about the kind of society we want to build. A society that prioritises efficiency over dignity may achieve short-term gains but risks long term harm. Privacy provides the space for individuality, creativity and dissent. Without it, democratic values weaken, and power becomes increasingly concentrated in the hands of those who control data and technology.

In the Indian context, where digital governance is expanding rapidly, the need for strong privacy protection is particularly urgent. Initiatives aimed at digital inclusion must be accompanied by safeguards that protect vulnerable populations. Marginalised communities are often the most affected by surveillance and data misuse, as they have fewer resources to challenge violations. Privacy, therefore, is also an issue of social justice.

Conclusion

Ultimately, the relevance of the right to privacy in the era of artificial intelligence lies in its ability to protect human dignity in a rapidly changing world. As technology becomes more powerful, the law must evolve to ensure that individuals are not reduced to mere data points. Privacy enables individuals to retain control over their identities and choices, even in a highly digital society.

REFERENCES

 Cases
1. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
2. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
3. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
4. Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
5. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
6. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
7. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
8. Joseph Shine v. Union of India, (2019) 3 SCC 39.

 Statutes
1. Constitution of India
2. Digital Personal Data Protection Act, 2023.