Safeguarding Cyber Liberties in India: A Legal Odyssey

I. Introduction

The internet's pervasiveness and the swift development of technology have fundamentally
transformed our methods of living, working, and communicating. The advent of digital
transformation has not only presented unparalleled prospects but has also engendered
intricate dilemmas, specifically concerning individual autonomy and confidentiality.

This article critically examines the safeguarding of cyber liberty as outlined in Article 21 of
the Indian Constitution, as viewed from the Indian standpoint. Through a thorough
examination of constitutional provisions, Indian judicial decisions, and international
comparisons, this work offers an all-encompassing analysis of the legal structure that protects
cyber liberties.

II. Constitutional Framework in India

Article 21: A sprint of Liberty1

The Indian Constitution, which was formulated in 1950, instils in its citizens fundamental
rights that protect their dignity and freedom. A fundamental tenet of the Constitution, Article
21 ensures the protection of individual liberty and the right to life. This right has been
broadly construed by the Supreme Court of India, extending to include fundamental liberties
such as education, freedom of expression, and privacy.

The historical development of Article 21 highlights its critical importance in safeguarding the
rights of individuals from capricious state intervention. The applicability of Article 21 in
cyberspace is consistently upheld by judicial interpretations, underscoring the enduring
nature of fundamental rights even in the digital domain.

III. Legal Framework in India

Beyond the constitutional framework, India has implemented targeted legislation to address
the challenges of the digital age. The Information Technology Act of 2000 (IT Act) 2 functions
as the principal legislation that regulates data protection and cybercrime. In response to
emerging concerns, amendments have been implemented to regulate intermediaries and
address the regulation of online content.

1
India Const. art. 21.
2
The Information Technology Act, 2000.
Prominent legal decisions have had a profound impact on the development of safeguards for
cyber liberty. The constitutionality of the right to privacy was upheld in the Puttaswamy
judgement (2017)3, which strengthened legal protections against unjustified surveillance. In
an additional significant legal proceeding, Shreya Singhal v. Union of India (2015) 4, the
Supreme Court invalidated Section 66A of the IT Act, thereby securing a triumph for digital
freedom of expression.

IV. Cyber Liberty obstacles in India

Notwithstanding constitutional and legal safeguards, cyber liberty encounters obstacles.

Privacy intrusion is a matter of concern due to cybersecurity threats, including data breaches
and online surveillance conducted by both private and public entities. Legal reactions are
progressing, as evidenced by the IT Act and the forthcoming Data Protection Bill, which
attempt to tackle these issues but have yet to be evaluated for effectiveness.

V. Expanding the Legal Canvas: A Mosaic of Cases

A. Indian Cases

1. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017): The Puttaswamy judgement
represents a turning point in the development of constitutional law in India. The petition
lodged objections to the constitutionality of the Aadhaar identification scheme, citing
concerns regarding the right to privacy and mass surveillance. In a pivotal ruling, the
Supreme Court reaffirmed that Article 21 of the Constitution explicitly guarantees the right to
privacy as a fundamental right.5

The court decision recognised the evolving nature of the digital age and underscored the
criticality of implementing strong privacy safeguards in this technological age. This event
laid the foundation for acknowledging the dynamic relationship between technological
progress and personal freedoms, solidifying the notion that the right to privacy is a
fundamental aspect of cyber liberties.

2. Triumph for Free Expression: Shreya Singhal v. Union of India (2015): The precedent-
setting Supreme Court ruling in Shreya Singhal v. Union of India is highly influential in the

3
Justice K.S. Puttaswamy (Retd.) V. Union of India, AIR 2017 SC 4161 (2017) (India).
4
Shreya Singhal V. Union of India, AIR 2015 SC 1523 (2015) (India).
5
Justice K.S. Puttaswamy (Retd.) V. Union of India, AIR 2017 SC 4161 (2017) (India).
domain of digital expression. The constitutionality of Section 66A of the IT Act was called
into question in this case. This provision granted extensive authority to apprehend individuals
for offensive or menacing online posts.

Recognising the potential for misuse and the debilitating effect it could have on free speech,
the Court invalidated Section 66A. This ruling not only ensured the protection of online
freedom of expression but also established a standard by which laws impacting digital
liberties are assessed for their constitutionality.6

3. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) – Part II: In addition to privacy, a
pivotal aspect of the Puttaswamy judgement (2017) was Part II, which examined the
intricacies of safeguarding data. The judgement established a set of guiding principles for
safeguarding data, with particular emphasis on the significance of informed consent, data
minimization, purpose limitation, and data security. It acknowledged the necessity of
implementing a strong data protection framework in order to ensure the safety of individuals
in the era of digitalization.

This particular segment of the ruling emphasised the government's responsibility in

safeguarding personal information and established the foundation for subsequent legislative
endeavours, such as the Data Protection Bill that was being proposed.7

4. Internet and Mobile Association of India v. Reserve Bank of India (2020): The legal
dispute between regulatory concerns and financial innovation was prominently featured in the
Internet and Mobile Association of India v. Reserve Bank of India case. The case contested
the RBI circular that prohibited financial institutions from offering virtual currency-related
services.

In its decision, the Supreme Court acknowledged the criticality of the internet as a
commercial and trade medium. The court decision underscored the importance of
proportionality in regulatory approaches that impact digital environments, specifically stating
that a total prohibition on virtual currencies would be disproportionate. This case exemplifies
the intricate equilibrium that must be maintained when regulating nascent technologies while
safeguarding personal freedoms.8

6
Shreya Singhal V. Union of India, AIR 2015 SC 1523 (2015) (India).
7
Justice K.S. Puttaswamy (Retd.) V. Union of India, AIR 2017 SC 4161 (2017) (India).
8
Internet and Mobile Association of India V. Reserve Bank of India, Writ Petition (Civil) No.528 of 2018
(2018) (India).
B. International Cases

1. Sergey Nikulin v. Russia (European Court of Human Rights): This case underscored the
transgression of the European Convention on Human Rights by the surveillance programme
of the Russian government, with a particular focus on accountability and transparency.9

2. Marilena Marin v. Romania (European Court of Justice, 2018): The Court ruled that
national courts are obligated to examine state access to electronic communications data,
emphasising the need for strong legal safeguards and underscoring the significance of judicial
oversight.10

3. Schrems II: Data Protection Commissioner v. Facebook Ireland Limited (2020): Facebook
Ireland Limited (2020), the European Court of Justice rendered a decision that nullified the
EU-U.S. Privacy Shield. This ruling underscored the criticality of guaranteeing an equivalent
standard of safeguarding for personal information during its transfer beyond the European
Union. This case highlights the worldwide consequences that data protection laws can have.

By extrapolating insights from these instances, India's strategy towards safeguarding cyber
liberty can be improved, and our comprehension and formulation of legislation pertaining to
cyber liberty protection can advance.11

VI. Comparative Analysis with Other Constitutions

The existence of legal frameworks and constitutional provisions that vary internationally
underscores both similarities and distinctions. Although the Fifth Amendment does not make
explicit reference to privacy in the U.S. Constitution, it does provide some safeguards for
online privacy. The General Data Protection Regulation (GDPR) of the European Union
establishes an exceptionally rigorous benchmark in the realm of data protection.

9
Sergey Nikulin v. Russia (2016). Available at: https://hudoc.echr.coe.int/eng?i=001-157539 (Accessed:
20 November 2023).

10
Marilena Marin v. Romania (2023). Available at: https://hudoc.echr.coe.int/fre?i=001-221835
(Accessed: 19 November 2023).

11
Schrems II: Data Protection Commissioner v. Facebook Ireland Limited (2019). Available at:
https://curia.europa.eu/juris/document/document.jsf;jsessionid=B7C280ED99ED04079AD1C5920C93A
996?
text=&docid=221826&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1273830
(Accessed: 19 November 2023).
Adequate protection of cyber liberties has become a global concern of paramount
significance in an era when modern existence is profoundly impacted by the digital
environment. A comparative analysis of the cyber liberty provisions enshrined in the
constitutions of the European Union, India, the United States, and Russia is the subject of this
article. This study examines the approaches utilised by each country to safeguard individual
liberties in the age of digital technology.

A. Privilege of privacy:

India: There is no explicit mention of the protection of the right to privacy in the Indian
Constitution. However, to ensure the protection of other inherent liberties, the Supreme Court
has interpreted the right to privacy as a fundamental right.

USA: The protection of the right to privacy is implicitly ensured in the United States
Constitution through amendments such as the Fourth Amendment, which proscribes
unreasonable searches and seizures.

Russia: By explicitly guaranteeing the right to privacy, the Russian Constitution assures the
protection of private and familial secrets and the inviolability of the domicile.

EU: The European Union recognises that the safeguarding of privacy and data is an inherent
and protected right, as enshrined in the Charter of Fundamental Rights.

Online Freedom of Expression:

India: India's constitutional safeguards for freedom of speech and expression extend to the
digital sphere. However, there have been occurrences of internet outages and limitations on
accessing online content.

USA: The First Amendment of the United States Constitution ensures protection for freedom
of speech, which encompasses online expression. However, certain types of discourse, such
as cyber threats, may be subject to limitations.

Russia: The Russian Constitution ensures the protection of freedom of expression;

nevertheless, concerns have been expressed regarding the potential enforcement of legislation
that imposes limitations on online content and the legal consequences for individuals who
express opposing views.

EU: The European Union (EU) maintains a stance that supports freedom of expression on the
internet, as outlined in the Charter of Fundamental Rights. Nevertheless, member states retain
the authority to enforce limitations on such activities in order to protect national security and
public order.

B. Power and Surveillance of the State:

India: In India, the absence of a comprehensive data protection law within the legal
framework gives rise to apprehensions concerning surveillance activities and the potential
exploitation of personal information pertaining to citizens.

USA: Controversial surveillance initiatives in the United States, such as the Patriot Act, have
sparked debates concerning the intricate balance that must be maintained between protecting
national security and respecting the privacy rights of individuals.

Russia: Regarding the balance between protecting national interests and preserving individual
liberties, concerns regarding state surveillance and restrictions on online activities in Russia
give rise to complications.

EU: The General Data Protection Regulation (GDPR), which imposes obligations on entities
that process personal data and confers comprehensive data protection rights on individuals,
has been implemented by the European Union (EU).

C. Legislative Structures and Cybersecurity:

India: In an effort to address cybersecurity and data protection concerns, India has enacted the
Information Technology Act and a Data Protection Bill has been introduced.

USA: The United States of America has a comprehensive legal framework concerning
cybersecurity, which includes the Cybersecurity Act and various executive orders designed to
strengthen the nation's position on cybersecurity.

Russia: Despite the enactment of legislation aimed at protecting critical information

infrastructure and governing cybersecurity, concerns continue to exist regarding the possible
implications for individual freedoms.

EU: The European Union (EU) has implemented a comprehensive cybersecurity framework
that places emphasis on collaboration between member states and the private sector with the
aim of enhancing cyber resilience.

International practise analyses can provide valuable insights for India's endeavours to
strengthen its legal framework safeguarding individual liberties in the era of digitalization.
Given the complex challenges that the digital age presents, the preservation of cyber liberties
remains a dynamic and constantly evolving undertaking. While each constitution reflects the
unique legal traditions and values of its respective nation, they all express universal concerns
and aspirations. Constraints regarding individual liberties and security requirements in the
digital realm require ongoing evaluation and modification in order to protect constitutional
principles in a constantly changing environment.

VII. Future Considerations for India

A. Legislative and Policy Reforms

The ongoing evolution of cyber hazards necessitates periodic evaluations of current

legislation. For the legal framework to be strengthened, there must be improved safeguards
for data, explicit directives regarding online surveillance, and an encouragement of
conscientious cybersecurity conduct. Campaigns to raise public awareness are crucial for
empowering individuals in the digital domain.

B. Technological Innovation and Legal Safeguards

The delicate task of reconciling technological advancements with individual freedoms

necessitates sophisticated legal protections. Promoting the creation and implementation of
encryption tools grants users’ authority over their data, thereby nurturing digital privacy.

C. Data Protection Bill and Its Implications

The Data Protection Bill, which is presently progressing through the legislative process,
offers the potential to rectify deficiencies in data protection legislation. Conducting a
thorough examination of its stipulations, forecasting how it may affect personal freedoms,
and verifying its conformity with international standards are crucial elements in India's
endeavour to strengthen cyber liberties.

VIII. Conclusion

The protection of cyber liberties in accordance with Article 21 requires a comprehensive

comprehension of the constitutional structure, Indian legal precedents, and international
standards. By adopting responsible technological advancements and strengthening legal
safeguards, India has the potential to develop a digital environment that promotes innovation,
empowers individuals, and safeguards fundamental rights.
This comprehensive investigation, based on Indian legal precedents and international legal
affairs, aims to make a scholarly contribution to a legal dialogue that supports cyber liberties
during a period of rapid technological advancement. By doing so, it guarantees the continued
significance and durability of cyber liberties in legal disputes. When traversing the complex
legal terrain of cyber liberties, it is crucial to acknowledge the ever-changing technological
landscape, the ever-changing scope of individual rights, and the mutually beneficial
connection between legal frameworks and technological advancements.
BIBLOGRAPHY

1. India Const. art. 21.

2. The Information Technology Act, 2000.
3. Justice K.S. Puttaswamy (Retd.) V. Union of India, AIR 2017 SC 4161 (2017) (India).
4. Shreya Singhal V. Union of India, AIR 2015 SC 1523 (2015) (India).
5. Internet and Mobile Association of India V. Reserve Bank of India, Writ Petition (Civil)
No.528 of 2018 (2018) (India).
6. Sergey Nikulin v. Russia (2016). Available at: https://hudoc.echr.coe.int/eng?i=001-
157539 (Accessed: 20 November 2023).
7. Marilena Marin v. Romania (2023). Available at: https://hudoc.echr.coe.int/fre?i=001-
221835 (Accessed: 19 November 2023).
8. Schrems II: Data Protection Commissioner v. Facebook Ireland Limited (2019). Available
at:
https://curia.europa.eu/juris/document/document.jsf;jsessionid=B7C280ED99ED04079A
D1C5920C93A996?
text=&docid=221826&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&
cid=1273830 (Accessed: 19 November 2023).