Encrypted State, Exposed Citizen: Examining Surveillance Asymmetry in Digital India.

Abstract

India’s accelerated adoption of digital governance has fundamentally reshaped the manner in which citizens engage with the State. Technology-driven platforms introduced for efficiency, accessibility, and administrative convenience have undoubtedly enhanced the delivery of public services. However, the expanding digital footprint of governance has simultaneously generated complex constitutional questions concerning privacy, consent, surveillance, and accountability. A distinct imbalance has emerged in which government systems operate behind strong encryption, institutional secrecy, and limited public oversight, while individuals are increasingly compelled to disclose personal and sensitive information to access essential services. This imbalance, commonly described as surveillance asymmetry, challenges the democratic principle that the State must remain accountable to its citizens rather than the reverse. Drawing upon constitutional provisions, judicial interpretations of the right to privacy, and principles such as proportionality, data minimisation, and informed consent, this article critically evaluates whether digital governance initiatives risk facilitating indirect State surveillance. It argues that, unless supported by transparent legal frameworks and robust safeguards, digital welfare mechanisms may erode informational autonomy and weaken constitutional liberties. The article concludes by proposing legal and institutional reforms necessary to preserve privacy, dignity, and democratic accountability in India’s evolving digital landscape.

Keywords: Digital Governance, Right to Privacy, Surveillance Asymmetry, Informational Privacy, Constitutional Accountability

1. Introduction

The integration of technology into governance has become a defining feature of the contemporary Indian State. Digital platforms now occupy a central role in the delivery of welfare schemes, public services, grievance redressal mechanisms, and legal remedies. Under initiatives promoting digital transformation, citizens increasingly interact with governmental authorities through online portals, biometric identification systems, and mobile-based applications. These developments are often justified on grounds of efficiency, transparency, and cost-effectiveness.

While digitalisation has undoubtedly improved administrative efficiency, it has also resulted in the unprecedented collection, storage, and processing of personal data. Citizens are required to share demographic details, biometric identifiers, location data, and behavioural information to access services that were once available through offline mechanisms. This shift has altered the power dynamic between the State and individuals, making citizens increasingly data-dependent.

At the same time, State-controlled digital infrastructures operate with minimal public transparency and are protected through sophisticated encryption mechanisms and institutional secrecy. This creates a disproportionate visibility dynamic where citizens are rendered increasingly transparent, while governmental processes remain largely concealed from public scrutiny. Such a disparity raises significant constitutional concerns regarding the protection of privacy, voluntariness of consent, and democratic oversight. The issue becomes more pronounced when participation in digital platforms is effectively mandatory for accessing basic rights and entitlements. This article seeks to analyse the constitutional implications of this emerging surveillance imbalance and assess whether India’s digital governance model aligns with the principles of liberty, dignity, and accountability enshrined in the Constitution.

2. The Concept of Surveillance Asymmetry

Surveillance asymmetry refers to a structural inequality wherein the State possesses extensive technological capabilities to monitor, collect, aggregate, and analyse citizen data, while individuals lack meaningful insight into how such data is utilised. Traditionally, democratic governance demands that transparency operate from the State towards the people, enabling accountability and public participation. However, digital systems invert this expectation by prioritising citizen visibility over governmental openness.

Unlike conventional surveillance practices, which are often overt and time-bound, digital surveillance operates continuously and invisibly. Data collection frequently occurs automatically through algorithms, databases, and interconnected platforms, making it difficult for individuals to comprehend the scale or consequences of surveillance. The absence of direct human oversight further obscures accountability.

This asymmetry intensifies the imbalance of power between the State and citizens, as the latter are rendered data subjects without corresponding control over their information. In a constitutional democracy, such an imbalance threatens individual autonomy and weakens institutional accountability.

3. Constitutional Foundation of the Right to Privacy

The recognition of privacy as a fundamental right was firmly established by the Supreme Court of India in Justice K.S. Puttaswamy v. Union of India (2017). The Court held that privacy is intrinsic to life and personal liberty under Article 21 and encompasses bodily integrity, decisional autonomy, and informational self-determination. The judgment marked a decisive shift in Indian constitutional jurisprudence by affirming that privacy is essential to human dignity.

The Court introduced a constitutional framework requiring State actions that infringe privacy to satisfy the tests of legality, legitimate aim, and proportionality. Any intrusion into privacy must be backed by law, pursue a legitimate State interest, and be necessary and proportionate to that aim. Importantly, the Court clarified that individuals must retain control over their personal information and that data collection cannot be excessive, arbitrary, or indefinite.

In the context of digital governance, this jurisprudence places strict limitations on the extent to which the State may compel citizens to share data. Mandatory digital participation without adequate safeguards risks violating the constitutional guarantee of privacy.

4. Informational Privacy and the Illusion of Consent

Informational privacy refers to an individual’s right to control the collection, use, and dissemination of personal data. Meaningful consent forms the cornerstone of this right. However, within digital governance systems, consent is frequently reduced to a procedural formality. Citizens are often required to accept standardised terms and conditions without adequate understanding, negotiation, or genuine choice.

When access to essential public services becomes dependent on digital participation, consent ceases to be voluntary. The preinstallation or unavoidable use of State-backed applications further undermines individual autonomy. In such circumstances, consent is not freely given but compelled by necessity.

This erosion of meaningful consent conflicts with constitutional principles recognised by the Supreme Court. Informational privacy cannot be preserved if individuals are forced to choose between surrendering personal data and accessing basic rights. The illusion of consent masks coercion and undermines democratic values.

5. Judicial Limitations on State Surveillance

Indian constitutional jurisprudence has consistently imposed restrictions on State surveillance powers. In PUCL v. Union of India (1997), the Supreme Court underscored that surveillance measures must adhere to procedural safeguards to prevent misuse.The Court held that executive discretion cannot override fundamental rights and emphasised the need for accountability and oversight.

Similarly, in the Aadhaar judgment (2018), the Supreme Court upheld the constitutional validity of the Aadhaar project while simultaneously restricting the scope of data usage.The Court mandated adherence to principles of necessity, proportionality, and purpose limitation, recognising the risks associated with large-scale data collection.

Further, in Anuradha Bhasin v. Union of India (2020), the Court acknowledged that digital access is intrinsically linked to fundamental freedoms and that restrictions on digital rights must satisfy constitutional scrutiny. These judgments collectively demonstrate judicial awareness of the dangers posed by unchecked surveillance in the digital age.

6. State Secrecy and the Erosion of Accountability

While citizens are increasingly required to disclose extensive personal information, the mechanisms governing State data practices often remain inaccessible. Although encryption serves legitimate security purposes, its use without transparency risks shielding State actions from accountability. Citizens are frequently unaware of how long their data is stored, who has access to it, or whether it is shared across departments.

A constitutional democracy demands that power be exercised transparently and subject to scrutiny. When citizens are denied access to information regarding data storage, sharing, and retention, the potential for misuse increases. State secrecy, when combined with mass data collection, creates an environment conducive to abuse of power.

7. Impact on Free Speech and Democratic Participation

Surveillance has implications that extend beyond privacy. Persistent monitoring can deter individuals from exercising their freedom of speech and expression guaranteed under Article 19(1)(a). The perception of constant observation creates a chilling effect, discouraging dissent, debate, and public engagement.

Democratic participation thrives on the freedom to criticise State actions without fear of reprisal. Surveillance mechanisms that inhibit such freedoms risk transforming governance into a system of control rather than service. The long-term consequence is the erosion of democratic culture and public trust.

8. Comparative Legal Approaches

Globally, concerns regarding digital surveillance have prompted stronger regulatory responses. The European Union’s General Data Protection Regulation (GDPR) emphasises transparency, informed consent, data minimisation, and accountability. It subjects both private entities and the State to strict compliance requirements and independent oversight.

India’s regulatory landscape, by contrast, remains fragmented. While legislative efforts towards data protection have been initiated, the absence of effective enforcement mechanisms and independent supervisory authorities continues to expose citizens to privacy risks. Comparative analysis highlights the need for stronger institutional safeguards in India.

9. Recommendations for Reform

To counter surveillance asymmetry and protect constitutional rights, the following measures are essential:

1. Enactment and enforcement of a comprehensive data protection regime
2. Transparency in State data-collection and processing practices
3. Independent oversight of surveillance and digital governance mechanisms
4. Strengthening the doctrine of informed and voluntary consent
5. Strict adherence to data minimisation and purpose limitation principles

These reforms are necessary to restore equilibrium between State authority and citizen autonomy in a digital democracy.

10. Conclusion

Digital governance has the potential to strengthen public administration and enhance service delivery. However, technological advancement must operate within constitutional limits. The increasing disparity between an encrypted State and an exposed citizenry poses a serious challenge to privacy, dignity, and democratic accountability.

Without adequate safeguards, digital initiatives risk enabling indirect surveillance and eroding fundamental freedoms. As India advances technologically, it must reaffirm its commitment to constitutional values. Protecting privacy is not antithetical to governance; rather, it is essential for preserving individual liberty and democratic integrity in a digital society.