Opinion New Income Tax Act 2025 expands state’s digital surveillance powers, marks a constitutional overreach

Section 132 of the 1961 Act already empowered officers to conduct a search-and-seizure when they believed a taxpayer was concealing income. This authority, broad though it was, remained tethered to tangible premises. The new Act not only re-enacts that power but enlarges its reach to the online domain. The distinction between a taxpayer’s financial records and their digital persona has collapsed: Tax officers may now pry into WhatsApp messages, emails, tweets, or private forums, all in the name of assessing income.

The government claims that the statute contains in-built safeguards: Prior approval from higher authorities, recorded reasons, and the prospect of judicial review. Yet experience teaches otherwise. In practice, sanctioning authorities act mechanically, rubber-stamping requests with little independent scrutiny. Reasons to believe are rarely disclosed to the taxpayer, and are often formed during or after the search itself. Judicial review, while theoretically available, occurs long after the intrusion has taken place. By then, privacy has already been violated.

The new law raises immediate constitutional concerns. Several decades ago, in Pooran Mal v Director of Inspection (1974), a five-judge bench upheld the constitutionality of Section 132, relying upon an even earlier decision from the 1950s that adopted a deferential stance towards state power. Those rulings were delivered in a constitutional landscape that predated the recognition of privacy as a fundamental right. In 2017, however, a unanimous nine-judge bench in K S Puttaswamy v Union of India located the right to privacy within Article 21 of the Constitution. The judgment held that any intrusion into privacy must satisfy the tests of legality, necessity, and proportionality. It demanded that restrictions be backed by a legitimate state aim, be the least restrictive means to achieve that aim, and be accompanied by procedural safeguards against abuse.

The new law, while giving sweeping powers to the tax authorities, which in effect would not only be in contravention of Puttaswamy, will also be in conflict with India’s own data privacy framework, the Digital Personal Data Protection Act, 2023 (DPDP Act), and its aims. Since the DPDP Act is built on principles such as purpose limitation and data minimisation, the snooping of personal data, including private messages and social media, will breach this. Since the majority of such data, even in case of any anomaly, will be bereft of any valuable evidence, the purpose limitation principle will be challenged. It is true that the DPDP gives broad exemptions to government agencies for investigating offences of a serious nature, offences concerning national security, etc. However, the risk is that routine tax assessments are being considered under the broad umbrella of this exemption.

While combating tax evasion is unquestionably a legitimate aim, the means chosen, unfettered access to virtual digital space (under Section 261 of the 2025 Act), is wildly disproportionate. Social media accounts, for instance, are not determinative of taxable income. Permitting revenue officers to rummage through private conversations in the hope of unearthing financial improprieties expands state power far beyond what is necessary.

More troubling is the collateral impact on democratic freedoms. Much of contemporary political dissent takes place online. Social media is not only a marketplace of ideas but also a forum where citizens critique policies and mobilise opinion. When the tax department possesses the legal authority to enter these domains, taxpayers may self-censor for fear that political speech could invite scrutiny under the guise of a tax investigation. The law thereby risks creating a chilling effect on free expression, imperilling the democratic bargain. In a country where tax authorities have historically been accused of targeting political opponents, this fear is hardly fanciful. The digital expansion of search powers transforms the income-tax department into a potential surveillance agency, without the constitutional safeguards that normally accompany intelligence operations.

The government points to the requirement of prior authorisation by senior officials as evidence of restraint. But these so-called safeguards have long been reduced to empty ritual. The sanctioning authority rarely applies an independent mind; approvals are issued mechanically, and oversight is weak. Crucially, the absence of a judicial warrant distinguishes Indian practice from constitutional democracies that value privacy. In most jurisdictions, state entry into private informational domains requires a prior warrant issued by a neutral magistrate. In India, however, tax officers act as judge, jury, and executioner, with courts only reviewing their actions ex post facto. Such an arrangement offends the basic structure of privacy jurisprudence. If the state must intrude upon an individual’s private domain, the intrusion must be justified before, not after, it occurs. The ex post model, where judicial review occurs only once harm has already been inflicted, offers no real protection.

While the new law concerns a domestic constitutional issue, the absence of a judicial warrant as one of the several safeguards is another major flaw. The Parliament should have considered how mature democracies like the United States, the United Kingdom, and the European Union deal with the same issue. All these nations, while recognising the need for dealing stringently with tax-related offences, require a warrant from a judge for search and seizure, safeguards for handling confidential material, and principles of proportionality and data minimisation, which ironically were incorporated in the DPDP Act and are being contradicted by this law.

That the Income-Tax Act, 2025, was an opportunity squandered makes matters worse. The government could have seized the chance to prune arbitrary powers, introduce judicial oversight, and craft a framework consistent with Puttaswamy. Instead, it has doubled down on surveillance, enlarging the very powers that most urgently required reconsideration.

The manner of passage compounds the problem. The Bill was pushed through Parliament without substantive debate, reflecting a troubling disregard for legislative deliberation on fundamental rights. That a statute of such far-reaching implications was rammed through in this fashion should concern not only taxpayers but all citizens committed to the democratic process. By extending traditional search powers into the unbounded realm of digital life, the statute has crossed a constitutional red line. Unless checked by courts or corrected by Parliament, it risks transforming the tax department into a tool of state overreach, with chilling consequences for democracy itself.

Kartikeya and Ahuja are advocates at the Supreme Court of India