Affirming privacy, rebuking India’s leaders
In a unanimous decision that gives new vigor to India’s Constitution and challenges the government’s rising authoritarianism, India’s Supreme Court last week affirmed the fundamental right to privacy. At the outset of an eloquent 547-page verdict, the court laid out the sweeping implications of the question before it: “If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection.”
The court’s decision was the culmination of legal challenges to India’s biometric identification program. Known as Aadhaar, the program was conceived to give India’s poor – who too often lack identification – a way to gain access to government services. But under the government of Prime Minister Narendra Modi, the scope of Aadhaar has grown alarmingly. It’s now the world’s largest biometric database, with more than a billion Indians enrolled. Initially voluntary, Aadhaar has become mandatory for such essential things as paying income taxes and opening a bank account, with government plans to expand its use. The ruling could affect the implementation of the program.
Critics of Aadhaar pointed to the growing threats to privacy from a mushrooming database that is vulnerable to security breaches and is easily exploited for government surveillance or to punish dissenters. Mr. Modi’s government argued that privacy was not a fundamental right and that security and anticorruption concerns outweighed privacy.
While conceding that no right is absolute – and opening the door to litigation on specific privacy issues down the line – the court ruled the right to privacy is “the constitutional core of human dignity.” As such, the court affirmed the right to choices like whom to love and what to eat – freedoms increasingly threatened under Mr. Modi’s government, where goons hound mixed Hindu-Muslim couples and mobs attack people suspected of eating beef.
And the court specifically took on the issue of gay rights, asserting that Section 377 of India’s penal code, which criminalizes gay sex, has a chilling effect on “the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.” While a new Supreme Court hearing is pending on this law – which the court upheld in 2013 – Mr. Modi’s government should now act to repeal it.
This decision reaffirms the fundamental freedoms that make all democracies strong. “Our society prospers in the shadow of its drapes,” the court wrote, “which let in sunshine and reflect a multitude of hues based on language, religion, culture and ideologies.”