Indian court rules right to privacy a fundamental right

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On Thursday, the nine-judge bench of India’s Supreme Court unanimously declared the right to privacy a fundamental right guaranteed under Article 21 of the Constitution of India. This significant judgment has wide-ranging implications for several government initiatives, particularly its biometric national identity system (the largest of its kind in the world) called the Aadhaar programme. It would also have important ramifications for issues pertaining to civil liberties in the world’s largest democracy.

The ruling has overturned two earlier judgements of the apex court - the MP Sharma verdict of 1950 and Kharak Singh of 1960 – which had ruled right to privacy as not protected under the Constitution. The nine-judge bench behind the latest ruling under Chief Justice JS Khehar ruled that privacy was part of the fundamental right to life and personal liberty guaranteed to all citizens under Article 21 of the Indian Constitution. It also spoke of the right to marriage, procreation, the privacy of home and the right to be left alone as other facets of privacy.

The broad implication of the ruling is that the government cannot frame any policy or law that completely takes away the citizen's right to privacy. It can only place reasonable restrictions on limited grounds such as national sovereignty and security, public order, decency etc, as specified under Article 19 (2) of the Constitution.

Setback to govt national identification program

The judgement was made on the highly contentious issue over the central government’s move to make Aadhaar mandatory for availing the benefits of various social welfare schemes. Several petitions were filed in the apex court challenging the government decision. Aadhaar is a 12-digit number issued by the central government of India to its citizens and it requires the resident's biometric and demographic information. Even though Aadhaar is voluntary, the government's move to make it mandatory for availing schemes raised serious concerns. Thursday's judgment is expected to have a direct effect on the government's plans for Aadhaar.

Chief Justice Khehar did not fix a bench or a date on which the legal challenge to the Aadhaar programme is to be heard. However, CJI-designate Dipak Misra will take a decision on this. A five-judge bench will now examine claims of Aadhaar opponents that the programme is an unreasonable intrusion into citizens' privacy. The petitioners are challenging the nature of information collected, which includes biometrics and its alleged unlimited use by government agencies.

The bench also overruled the Emergency-era ruling made in the ADM Jabalpur case that had said the State could suspend and take away the liberty of citizens during a proclamation of Emergency and the citizens cannot even approach the apex court for relief.

Implications for private information held by social media

Highlighting other facets of the judgment, Advocate Sonal Nagpal pointed out: “The apex court tried to cover various facets of privacy such as informational privacy in the digital age and urged the government to quickly bring in a data protection law to deal with fast-changing technological developments. There are potential implications here for data collected by social networking sites, finance and e-commerce companies”.

It is important to understand here the difference between what is personal and what is private. Privacy does not entail the right to hide data from somebody. For instance, the right to privacy comes into focus when an individual in his residence enjoys the right of not being watched or disturbed by other people. The court highlighted this essential aspect of privacy when it stated today: “The duty of the state is to safeguard the ability to take decisions — the autonomy of the individual — and not to dictate those decisions”.

According to the ruling, the government cannot deny a citizen social welfare benefits – such as subsidized ration etc. – if he or she denies the government access to her biometrics. It is to be noted here that a large chunk of rural India is dependent on government welfare schemes. The same precedent may probably not apply to some social media applications that grant access to their services only if their customers share their contact details, photo gallery etc. If the user denies access to the same, the application does not deprive anybody of basic needs like food, shelter and entitlements.

It is also ironic that even biometrics cannot guarantee the right to food for the poor in the absence of efficient infrastructure facilities in the country. There have been thousands of cases reported in central and northern parts of India, where the old or the extremely poor have been denied their rightful benefits due to failed biometric authentication.

Caveats in the right to privacy

Although privacy has been upheld as a fundamental right, its several facets need to be properly understood. Right to privacy does not affect the right to information act. The government still allows its citizens the right to question how their elected representatives have been utilising public money for development purposes.

However, the big question is if privacy is a fundamental right, how will it impact on the credibility of the Aadhaar program? Will people in rural India still need an Aadhaar number to receive their basic needs? What will happen to the biometric data of citizens of India that has already been captured and linked to telecom, banking and other services? Will the government now adopt the system of data protection and take a citizen’s permission every time before using their data for any purpose? The answer to these may be given in subsequent rulings.