India’s supreme court delivers judgment on right to privacy in blow to Modi administration

In a landmark judgment, India’s supreme court yesterday ruled that the country’s citizens can count privacy among their fundamental rights.

The verdict was a setback to prime minister Narendra Modi’s government, which was seeking to protect and enforce its system of biometric identification.

A full, nine-judge bench said in a unanimous decision that ran to more than 500 pages, that Article 21 of India’s constitution, which protects the right to life and personal liberty, should be interpreted to include the right to personal privacy.

The supreme court heard several cases, over six days in July, about whether privacy is a fundamental right, after petitioners complained about Aadhaar, a database of citizens’ information and biometrics.

Over the past two years, Mr Modi’s government has made enrolment in Aadhaar virtually mandatory for a range of services: opening a bank account, whether in a private or government-owned bank; filing an income tax return; getting a death certificate; getting a mobile Sim card; and more.

Aadhaar was originally intended for the poor to voluntarily enrol themselves to be able to receive welfare benefits more efficiently. But as it insinuated itself deeper into people’s lives, several activists and civil rights groups filed petitions arguing that the now-mandatory nature of Aadhaar was a breach of citizens’ privacy, and that people had to part with biometric information against their will.

Technology has made it possible to enter a person’s house “without knocking at his/her door”, the judges wrote. “It is an individual’s choice as to who enters his house, how he lives, and in what relationship.”

The metaphor of the house, the judges said, applied to citizens’ lives as well, and to their right to protect their information and personal liberties from the state.

How the decision applies to Aadhaar and the government’s use of it will now be decided by a separate, five-judge bench of the supreme court. No date has been held for that hearing.

The government’s insistence on linking Aadhaar to public services “is designed to cause civil death”, said Gopal Krishna, of the Citizens Forum for Civil Liberties, which has advocated against Aadhaar.

Fearful of losing access to state and private services, “people are being compelled to share their personal, sensitive information”, Mr Krishna said.

In its court defence of its deployment of Aadhaar, the government’s lawyers frequently argued that privacy cannot be treated as a fundamental right and that personal privacy was subject to the state’s needs.

Instead, KK Venugopal, India’s attorney-general, called it a “qualified” right – one in which the government can intervene when it deems necessary.

This was the vision of the constitution’s framers, he said in July. “Privacy, as a fundamental right, could have been mentioned in Article 21, but has been omitted. This was deliberate.”

But the petitioners sought to enlarge the notion of privacy beyond just a question of personal data.

“Privacy is a broader concept, and data sharing is only one aspect of privacy,” said Gopal Subramanium, one of the lawyers arguing against the government. “Privacy is about the freedom of thought, conscience and individual autonomy, and none of the fundamental rights can be exercised without assuming a certain sense of privacy.”

Yesterday’s verdict outlined only a few restrictions of the exercise of privacy as a fundamental right: national security, criminality, or instances where privacy clashes with another person’s constitutional right.

The court’s judgment specified that the government must now be expected to frame laws pertaining to privacy.

The ramifications of the judgment may extend well beyond the Aadhaar programme.

Under its ambit, for example, petitioners might now protest against the bans on beef, prevalent in various states.

“I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with,” wrote one of the judges, J Chelameshwar, in his judicial opinion.

Similarly, a woman’s right to abort a baby after 12 weeks of pregnancy might be derived from her entitlement to privacy.

The court’s judgment specified that the government will now be expected to frame laws pertaining to privacy