Mass Surveillance and the Constitutional Right to Privacy

Abstract

The chapter examines the constitutional legitimacy of mass surveillance programmes in the digital era through the lens of the right to privacy as a fundamental right. Studying the landmark Indian Supreme Court decision in Justice K.S. Puttaswamy v. Union of India (2017), as well as European Court of Human Rights jurisprudence and Court of Justice of the European Union decisions such as Digital Rights Ireland, this chapter argues that while the state possesses a legitimate security interest, mass or bulk surveillance can only survive constitutional scrutiny if it strictly satisfies the three-level Doctrine of Proportionality: legality, legitimate aim, and proportionality stricto sensu. The chapter further examines how the collection of communications data generates a chilling effect on the fundamental rights of free speech and association. It concludes by proposing a Privacy-by- Design legislative framework that could reconcile the imperatives of national security with the inviolable constitutional core of human dignity.