Mr. Paarth Miglani B.A.LL.B, Dr. B.R. Ambedkar National Law University, Sonepat

INTRODUCTION Envision a reality where every action you take is monitored, and your most private data is collected and analyzed—without your input on its usage. This is not a dystopian fiction but a reality experienced by countless individuals today. The pivotal Supreme Court ruling in Justice K.S. Puttaswamy (Retd) v. Union of India, 2017 stands as a compelling affirmation that privacy is not merely a luxury, but a fundamental entitlement essential to human dignity, freedom, and self-determination. By recognizing privacy as an inherent element of the right to life and personal liberty, as outlined in Article 21, the ruling clarified years of legal uncertainty, establishing a strong framework to safeguard personal freedoms in an age increasingly defined by technology and surveillance.

However, surveillance is frequently defended as a means to promote safety and efficiency, presenting a complex challenge in its application. In India, programs such as the Aadhaar system and predictive policing illustrate how government-led surveillance disproportionately affects marginalized groups, reinforcing existing biases. Although these systems’ manoeuvre is to improve safety and governance, they often lead to discrimination, profiling, and limitations on freedoms for the most at-risk populations. This contradiction calls for careful examination, as the pursuit of security usually comes at the expense of exacerbating inequality and sustaining systemic injustice.

THE DOUBLE-EDGED SWORD OF SURVEILLANCE

Surveillance as a Tool of Control: Surveillance has been historically employed as a means of control, frequently targeting particular communities to preserve power dynamics. During the era of colonialism, it served as a crucial tool for managing and dominating local populations. Colonial regimes kept an eye on dissent, charted territories, and classified individuals according to ethnicity, religion, and caste to effectively divide and rule. For example, the British Raj in India carefully recorded local populations via censuses; and utilized surveillance to suppress uprisings like the rebellion of 1857. These tactics sought to stifle opposition and strengthen authority, demonstrating the critical role monitoring had in maintaining colonial rule.

Activists, minority groups, and economically disadvantaged populations continue to be disproportionately affected by state surveillance in modern society. Similarly, the surveillance of journalists and activists in authoritarian regimes aims to stifle dissent and restrict liberties, demonstrating how contemporary technologies augment the efficacy of surveillance as a tool for control.

Disproportionate Targeting of Marginalised Communities: The overlap between surveillance methods and systemic inequality is often evident in the unfair targeting of marginalized groups. Facial recognition technology-enabled racial profiling has become a significant problem, especially in the US and other Western countries. Thus, as the Black and Indigenous groups are more likely to be classified as “suspicious” due to faulty algorithmic judgements, this disparity increases the risks connected with monitoring. Religious minorities, especially Muslims, have been disproportionately affected by digital monitoring conducted under the guise of counterterrorism since the September 11 attacks. Instead of facing real threats, many Muslim communities are subject to increased scrutiny because of their religious connection. Such practices frequently target people based on their colour, socioeconomic background, or immigration status, which exacerbates already-existing disparities.

Impact on Privacy and Freedoms: The implications of surveillance on privacy and personal freedoms are significant, especially for marginalized groups. Continuous monitoring undermines individual autonomy, creating a pervasive feeling of being observed, independent of one's actions. This awareness of surveillance can change how people behave in public spaces and online, contributing to a loss of personal freedom. Particularly, marginalized communities suffer more from this monitoring, as it infiltrates their everyday experiences, from encounters with authorities to ordinary social interactions.  The mental and emotional strain of being perceived as part of a “suspect population” also inflicts a heavy burden, as individuals are persistently reminded of the suspicion surrounding their existence. The ongoing observation creates an atmosphere of fear and distrust, undermining personal expression and communal unity, preventing individuals from confidently challenging or opposing oppressive systems.

CASE STUDIES: INSIGHTS FROM INDIA AND BEYOND Numerous case studies that expose systematic biases and exclusions make it evident how surveillance systems have unequal consequences on underprivileged groups. Ironically, millions of Indians now lack access to basic benefits as a result of the introduction of Aadhaar, a unique identifying system designed to streamline welfare distribution. Vulnerable populations, such as those living in rural regions, migrant labourers, and the elderly, have been disproportionately affected by issues like biometric malfunctions, the digital divide, and the mandatory connection of Aadhaar to welfare programs. The difficulties faced by migrant workers during the COVID-19 pandemic and instances of starving deaths in Jharkhand seem to be linked to unsuccessful Aadhaar-based ration authentication.

Similar patterns show up all over the world, as vulnerable people are disproportionately affected by surveillance technologies. Racial biases in facial recognition systems, for instance, have drawn criticism in the US because they can lead to misidentifications and erroneous arrests, serious concerns about human rights violations have been raised by China’s use of advanced AI and facial recognition technologies to monitor Uyghur Muslims under the pretence of counterterrorism. To guarantee that surveillance technologies do not worsen already-existing social injustices, these case studies highlight the critical necessity for ethical frameworks and accountability procedures.

Aadhaar Surveillance: Exclusion of Marginalized Communities: The Aadhaar system, however, designed to enhance inclusion, has frequently led to the exclusion of marginalized communities because of systemic and infrastructural flaws. Biometric failures have impacted groups such as manual workers, whose fingerprints may be too worn down, and the elderly, leading to the denial of essential services like food rations. Furthermore, the digital divide has strengthened the marginalization of both rural populations and the urban poor, who lack the requisite infrastructure for Aadhaar authentication. The compulsory integration of Aadhaar with welfare programs has intensified these challenges, creating obstacles for individuals unable to provide valid identification due to insufficient documentation or systemic barriers.

High-profile cases, such as the starvation deaths in Jharkhand where Aadhaar authentication failed, and the exclusion of migrant workers during the COVID-19 pandemic due to Aadhaar-linked registration issues, highlight the severe impact of these policies. These examples underscore how surveillance technologies, when poorly implemented, can deepen social inequities and deny basic rights to the most vulnerable sections of society.

Predictive Policing and Social Media Surveillance of Black Lives Matter Activists in the U.S.: In the United States, the Black Lives Matter (BLM) movement has been subjected to significant surveillance through predictive policing and the monitoring of social media platforms. Law enforcement agencies have used sophisticated algorithms to track the activities of activists both online and offline, referred to as efforts for public safety. This form of surveillance disproportionately impacts Black communities and those who support racial justice initiatives. Social media platforms have become crucial tools for law enforcement to pinpoint protest organizers, observe planned events, and collect information on participants. Predictive policing intensifies systemic discrimination, as algorithms based on historical crime data often reflect and perpetuate biases against marginalized populations, especially African Americans. This not only undermines the right to protest but also creates a chilling effect, dissuading people from engaging in social change movements.

Advanced AI Surveillance and Oppression of Uyghur Muslims in China: China’s monitoring of the Uyghur Muslim community in Xinjiang represents one of the most disturbing instances of government-led oppression through cutting-edge technology. By employing AI-enhanced facial recognition systems, collecting biometric data, and implementing extensive surveillance networks, the Chinese authorities have established a comprehensive control system aimed at Uyghur populations. People are tracked in real-time, their movements are observed, and their communications are analysed. Advanced algorithms evaluate behaviour patterns to identify “suspicious” activities, often resulting in arbitrary detentions. This surveillance apparatus supports a broader campaign of repression, which includes forced labour, indoctrination in detention facilities, and cultural suppression. The systematic discrimination against Uyghur Muslims underscores the grave repercussions of unregulated surveillance technologies, particularly when they are used to oppress minority groups and infringe upon basic freedoms.

LEGAL SAFEGUARDS AND THEIR GAPS As surveillance systems become increasingly pervasive, it is essential to assess the legal frameworks meant to protect privacy and evaluate the gaps that enable misuse and overreach.

Existing Legal Frameworks: Privacy is acknowledged as a basic right under numerous domestic and international legal frameworks. In India, the pivotal ruling in Puttaswamy v. Union of India (2017) confirmed the right to privacy as a fundamental right under Article 21 of the Constitution. This decision created an important legal benchmark, highlighting that privacy is essential to individual dignity and personal freedom. On the global stage, international agreements such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) affirm privacy as a human right. Article 12 of the UDHR and Article 17 of the ICCPR forbid arbitrary intrusions into privacy, establishing a universal benchmark for the safeguarding of personal information and individual autonomy.

Gaps in Enforcement: Even with these frameworks in place, there are still notable deficiencies in their enforcement. Numerous surveillance programs function through obscure processes, offering little to no clarity on how data is gathered, maintained, and utilized. In addition, oversight mechanisms are often feeble or non-existent. In various countries, surveillance initiatives lack independent review entities to ensure adherence to privacy regulations. This lack of accountability fosters an environment ripe for misuse, disproportionately affecting marginalized populations who are frequently subject to heightened scrutiny under the pretext of national security or public order.

Need for Stronger Safeguards: Strong legal protections are essential to address these deficiencies. Requiring court approval for surveillance activities can add an important layer of accountability, guaranteeing that these actions undergo a thorough examination. Judicial oversight can also assist in preventing arbitrary or biased practices. This method not only promotes democratic oversight but also ensures that the voices of marginalized communities are considered in the pursuit of fair privacy rights.

RECOMMENDATIONS
A multi-pronged approach is necessary to ensure that surveillance practices respect privacy and prevent harm to marginalised communities. This involves policy reforms, technological advancements, and community empowerment to create a balanced and inclusive framework.

Policy Reforms: Robust data protection regulations need to be established to meet the unique requirements of at-risk populations. These regulations should incorporate strong protections against the misuse of personal information and offer avenues for recourse in instances of rights infringements. The aim should also be to guarantee equal access to privacy entitlements for every individual, independent of their economic background. Furthermore, conducting human rights impact assessments should be made a compulsory aspect of formulating and executing surveillance policies that will aid in recognizing and alleviating the unequal burdens of surveillance on marginalized groups.

Technological and Institutional Safeguards: The creation of unbiased AI technologies is essential for minimizing discriminatory surveillance practices. This necessitates that algorithms undergo thorough testing and auditing to avoid reinforcing biases related to race, gender, or socioeconomic status. A transparent approach to AI development, coupled with public engagement, can improve equity and confidence in technology-based surveillance systems. The establishment of independent regulatory agencies to oversee surveillance activities can provide an additional level of responsibility. 

Empowering Marginalised Communities: Raising awareness in marginalized communities through educational initiatives is an essential step in upholding their digital rights. Teaching individuals about digital privacy, data protection, and the legal remedies available empowers them to identify and contest infringements on their rights. Additionally, offering accessible legal support to those who are disproportionately affected by surveillance programs can empower them to pursue justice and hold wrongdoers accountable. 

CONCLUSION Surveillance, although designed to improve security, often functions as a means of control that disproportionately affects marginalized groups. The convergence of technology and systemic inequality intensifies violations of privacy and worsens societal divides. To safeguard privacy as an essential right, effective legal protections, technological advancements, and community empowerment are crucial. By implementing policy changes, developing unbiased technology, and launching awareness campaigns, we can establish a surveillance system that honours privacy and maintains human dignity for everyone, ensuring that the pursuit of security does not compromise justice and equality.