Nine-member Supreme Court rule in favor of right to privacy
Landmark judgment could have implications for country's biometric identity card scheme
In a sign of the digital times we live in, India’s top court found itself deliberating a fittingly new-age question: Is privacy a fundamental legal right for 1.34 billion people?
The answer is yes.
On Thursday in the Indian capital, a rare nine-member bench of the Supreme Court issued a historic ruling with potentially widespread consequences, decreeing that a right to privacy is part of the fundamental rights to life and liberty enshrined in the country’s constitution.
The heated and politicized court case – which pitted rights activists against the government of India – could have implications for the country’s biometric identification program known as Aadhaar.
On one side, the petitioners said the fingerprints and retinal scans collected under Aadhaar violated an individual’s right to privacy. Lawyers representing the government of Prime Minister Narendra Modi countered that India’s constitution did not recognize a fundamental right to privacy.
The court’s ruling is a rebuke of the government’s stance.
Rights activists were quick to rejoice.
“This is not just a legal victory. It is a moral victory,” said Nikhil Pahwa, the co-founder of the Internet Freedom Foundation, and also the founder of the technology site Medianama.
While Thursday’s ruling did not directly comment on Aadhaar, it in effect cleared the way for further deliberations on the scope of the government’s program.
A separate Supreme Court bench is expected to weigh in on Aadhaar at a later stage. Those deliberations could take several months or even years.
More than a billion Indians have so far been registered in the Aadhaar identity program, which sees citizens issued with a 12-digit number that aligns to specific biometric data such as eye scans and fingerprints.
Thursday’s ruling quickly became politicized. As journalists and analysts scrambled to make sense of the ruling’s impacts, a rapid thrust-and-parry was playing out on social media and the country’s many TV news channels.
Opposition Congress party leader and former Finance Minister P. Chidambaram told reporters the verdict “will rank among the most important judgments delivered by the Supreme Court since the advent of the constitution of India.”
The Congress Party’s Vice President Rahul Gandhi went a step further, tweeting that the court decision marked “a major blow to fascist forces.”
The government was quick to punch back.
At a hastily arranged press conference, India’s Law and Justice Minister Ravi Shankar Prasad dismissed Gandhi’s comments by saying the Congress leader “needed to do his homework” and suggesting Gandhi hadn’t read the whole judgment.
Prasad, while admitting his government would respect the court’s decision, made it a point to highlight other parts of the ruling.
“The right to privacy is not absolute. It is to be determined on a case by case basis,” said Prasad, reading directly from a stack of papers as cameras carried his message live to millions of TVs across the country.
Prasad made sure to get in another political dig, pointing out that the Aadhaar program began in 2009, when the Congress party was in power. “That’s when the data collection began,” he said. Modi’s government assumed office in 2014.
The Supreme Court’s ruling spanned more than five hundred pages, drawing not only on Indian legalese and history, but also on Western political thought, citing the 19th century English philosopher John Stuart Mill’s “On Liberty,” as well as the writings of James Madison, the 4th President of the United States and co-framer of the American constitution.
Fittingly, India’s move to make privacy a fundamental right could have global implications. “The harms of important personal data leaking are far greater than having a digital identity,” said co-founder of the Internet Freedom Foundation, Pahwa, referring to reported leaks of people’s biometric data.
“I think this ruling is important for countries in Africa and around the world that were hoping to learn from India’s experience.”
While Aadhaar has been criticized by activists for its implementation and data leaks, it has also been lauded by tech leaders as the world’s only system that has a billion people with the equivalent of a digital social security number and biometric ID.
“The whole world is marveling at our technology,” said Prasad in his press conference. “We take minimum information for maximum use.”
The program in theory means banks and government agencies can instantly verify people’s identities, which has a range of practical implications.
Modi’s government recently stepped up enrollment as part of its ‘Digital India’ program, making registration mandatory for people to access crucial social benefits such as a rural wage welfare program.
“We are sending subsidies directly to the poor in their bank accounts. In the last three years we have saved nearly $9 billion which would have been pocketed by middlemen,” said Prasad. “The poor are happy. They are feeling empowered.”
Activists say they will continue to warn of the dangers of state overreach.
“I don’t have an Aadhaar number and I don’t want one,” said Pahwa. “We generate a lot of data. We shouldn’t have to give that up.”