The Right to Privacy in India

Unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) vs Union of India is a resounding victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The judgment’s ringing endorsement of the right to privacy as a fundamental right marks a watershed moment in the constitutional history of India. The one-page order signed by all nine judges declares:

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week’s judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

The judgment, in which the judges state the reasons behind the one-page order, spans 547 pages and includes opinions from six judges, creating a legal framework for privacy protections in India. The opinions cover a wide range of issues in clarifying that privacy is a fundamental inalienable right, intrinsic to human dignity and liberty.

The decision is especially timely given the rapid roll-out of Aahaar. In fact, the privacy ruling arose from a pending challenge to India’s biometric identity scheme. We have previously covered the privacy and surveillance risks associated with that scheme. Ambiguity on the nature and scope of privacy as a right in India allowed the government to collect and compile both demographic and biometric data of residents. The original justification for introducing Aadhaar was to ensure government benefits reached the intended recipients. Following a rapid roll-out and expansion, it is the largest biometric database in the world, with over 1.25 billion Indians registered. The government’s push for Aadhaar has led to its wide acceptance as proof of identity, and as an instrument for restructuring and facilitating government services.

In the wake of data leaks and hacking incidents, Aadhaar critics argue that biometric data linked to the card could be misused by the government agencies. Whereas on the other hand government strongly backing the Aadhaar scheme, the Centre submitted that the right to life of millions of poor in the country through food, shelter and welfare measures was far more important than privacy concerns raised by the elite class.

So now the basic question to be asked is, “Is aadhar in jeopardy yet or not?”