India’s high court casts a vote for privacy

LAST week, India’s top court unanimously ruled that privacy is a fundamental right for the country’s 1.3 billion people – contrary to the position of the government of Prime Minister Narendra Modi, which had been hoping to make broad use of citizen data acquired under a controversial biometric identity programme. Activists hailed the decision as a bright spot for individual freedoms at a time when they have been under assault.

The ruling comes as a major blow to Modi’s ruling Bharatiya Janata Party, which has been harshly criticised recently for measures viewed by many as infringing on individual rights. The Supreme Court decision will now provide a legal basis for review of government actions that have curtailed personal freedom. The outcome of the case amounts to a serious loss of face for Modi and his ministers, although they made a point of welcoming the ruling. “Privacy should be a fundamental right subject to reasonable restrictions,” Law Minister Ravi Shankar Prasad declared.

More immediately, the decision will have far-reaching effects on the rollout of the world’s largest biometric identity card programme, which has been criticised for storing private data in ways that make it susceptible to manipulation.

Under that system, each Indian citizen is supposed to receive a 12-digit “unique individual number” (UID, known in Hindi as an aadhaar), linked with eye scans and fingerprints, as a way of verifying his or her identity when accessing public services or carrying out financial transactions. The current government – which opposed the plans when it was in the opposition – argues that the programme will streamline bureaucratic procedures and ensure that benefits reach the right people.

The programme has been challenged by activists, who argue that it will open the path to massive government surveillance. Though last week’s ruling did not directly refer to the UID programme, it did refer to the risks of “dataveillance” and the “permanency” of data sets.

The ruling will also affect civil rights more widely. The ruling declared that sexual orientation is part of privacy, and that privacy cannot be denied to anyone in the country. This offers activists a new basis for challenging Section 377 of the Indian Penal Code, which criminalises homosexuality.

The right to privacy debate has moved to the forefront of politics as the Modi government has pushed an aggressive Hindu nationalist agenda at the expense of civil and minority rights, including edicts on what to eat or whom to marry.

The court decision will now enable challenges to recent bans on beef and alcohol consumption in many Indian states. BJP-dominated governments around the country implemented the bans as part of their efforts to enshrine Hindu religious practices into the law. Religious vigilantes, knowing they can operate with impunity, have committed multiple crimes. Since April, at least 10 Muslim men suspected of eating or storing beef have been lynched or killed. Many of these lynchings have taken place in states where the BJP is in power and have been directly linked to its aggressive Hindu nationalist agenda.

Last week’s decision appears to have taken into consideration not just the political climate in the country but also its social ramifications with the authors arguing that privacy has negative as well as positive components. “The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen,” they write, adding that its positive content is an obligation on the state to protect individual privacy, especially “in an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights”.

The judges seem to be responding to a growing fear in the country that the Modi-led government is trying to transform the social fabric of India. The ruling is not just pushing through the idea of privacy but through it the idea of a secular, tolerant India.

The ruling is also a reminder that the judiciary is still the backbone of the Indian democracy. Despite many mistakes and failings along the way, India’s judges have always shown themselves to be the ultimate guardians of the liberties enshrined in the constitution.

In June, a group of 65 retired government officials published an open letter condemning rising intolerance in the country. “In the face of a rising authoritarianism and majoritarianism, which do not allow for reasoned debate, discussion and dissent, we appeal to all public authorities, public institutions and constitutional bodies to take heed of these disturbing trends and take corrective action,” they wrote. “We have to reclaim and defend the spirit of the Constitution of India, as envisaged by the founding fathers.”

This ruling seems to be the beginning of the corrective action they recommended.