Blow to government as India’s top court rules privacy a fundamental right

New Delhi/India: India’s top court unanimously ruled on Thursday that individual privacy is a fundamental right, a verdict that will impact everything from the way companies handle personal data to the roll-out of the world’s largest biometric ID card programme.

A nine-member bench of India’s Supreme Court announced the ruling in a major setback for the Narendra Modi-led government, which argued that privacy was not a fundamental right protected by the constitution.

“Right to privacy is an intrinsic part of right to life,” Chief Justice J.S. Khehar said while reading out the verdict.

The court ordered that two earlier rulings by large benches that said privacy was not fundamental in 1954 and 1962 now stood overruled, and it declared privacy was “an intrinsic part of the right to life and liberty” and “part of the freedoms guaranteed” by the constitution.

“This is a blow to the government because the government had argued that people don’t have a right to privacy,” said Prashant Bhushan, a senior lawyer involved in the case.

In India, anything considered a “fundamental right” has constitutional protection and can’t be taken away, except for rare exceptions such as national security. Law officers of the federal government had argued in court that privacy was not a fundamental right and an individual’s right to their body isn’t absolute.

India’s law ministry was not reachable for comment, but Law Minister Ravi Shankar Prasad weighed in on the ruling.

Affirming India’s priority on data protection, Prasad on Thursday said the government does not give the right to release data to anyone, except in case of compelling public interest.

“As the IT minister of the country, I can’t give my data or finger print to anyone. Government does not give the right to release data to anyone, except in case of compelling public interest and this compelling public interest shall be affirmed first by the Joint Secretary Home Ministry, vetted by a committee of the Cabinet Secretary, IT Secretary and Law,” Prasad said.

He was addressing media persons following the apex court’s judgement.

“The Narendra Modi government is very proud to be seen as India’s digital power. And India is today recognised worldwide as an emerging digital power for Digital India, Make in India.

“There are 1.18 billion mobile connections. There are 500 million internet connections. India will be a global digital power and we can take good care of our cyber security and safety. I am very happy that all the big international companies are coming to India in a big way. There is Google, Facebook, WhatsApp ... they are all welcome,” he added

Prasad asserted that like all other fundamental rights, the right to privacy is also not an absolute right.

Saying that data protection is one of the key focus of the government, the minister said the government had already formed a committee for data protection.

The judgement also has a bearing on broader civil rights, as well as a law criminalising homosexuality. Lawyers said it also impacts a ban imposed on the consumption of beef in many states and on alcohol in some states.

In his personal conclusion, Justice Sanjay Kishan Kaul wrote privacy is a fundamental right and it protects the inner sphere of an individual from interference from both state and non-state actors and lets individuals make autonomous life choices.

“The privacy of the home must protect the family, marriage, procreation and sexual orientation,” Kaul wrote.

Aadhaar setback

The privacy judgement was delivered at the end of the tenure of Khehar, who retires in a few days.

The ruling comes against the backdrop of a large multiparty case against the mandatory use of national identity cards, known as Aadhaar, as an infringement of privacy. There have also been concerns over data breaches.

Aadhaar, which means “foundation” in Hindi, is a 12-digit number provided to citizens after collecting their biometric information — finger prints and an iris scan — along with demographic details and a mobile phone number. It was originally designed to stop the pilfering by middlemen of government subsidies for the poor, by underpinning a citizen’s ID with biometric data, and to save money as the government doles out social security benefits.

The Aadhaar program has gradually become a key component of Prime Minister Narendra Modi’s push to make India a cashless society. Modi’s government has attempted to make Aadhaar compulsory for a number of government services ranging from school meals for students to paying taxes, raising concerns about privacy and data theft.

“Aadhaar’s architecture will now have to be tested on the touchstone of privacy being a fundamental right,” said lawyer Sajan Poovayya, who represents lawmaker and entrepreneur Rajeev Chandrasekhar, one of the petitioners. “If Aadhaar has to pass the muster, its architecture should not impinge or erode this fundamental right to privacy.”

Critics say the ID card links enough data to create a full profile of a person’s spending habits, their friends, property they own and a trove of other information.

Aadhaar, which over one billion Indians have already signed up for, was set up to be a secure form of digital identification for citizens, one that they could use for government services.

But as it was rolled out, concerns arose about privacy, data security and recourse for citizens in the face of data leaks and other issues.

Over time, Aadhaar has been made mandatory for the filing of tax returns and operating bank accounts. Companies have also pushed to gain access to Aadhaar details of customers.

Those opposed to the growing demand for Aadhaar data cheered the ruling.

“Truly a victorious week for India — upholding liberty, dignity and freedom for all,” Jyotiraditya Scindia, a member of parliament from the opposition Congress party, said in a tweet.

Bhushan, the senior lawyer involved in the case, said while government demands for the use of Aadhaar for tax purposes could be considered reasonable, any demands for the use of Aadhaar for travel bookings and other purchases could now be questioned in the face of the ruling.

“The fact that there was no dissent is an important thing,” said Raman Chima, policy director at Access Now, which defends digital rights. “They made it clear that the government has to protect privacy.”