INDIA’S top court unanimously ruled today (24) that individual privacy is a fundamental right, a verdict that will impact everything from the way companies handle personal data to the roll-out of the world's largest biometric ID card programme.
A nine-member bench of India's Supreme Court announced the ruling in a setback for the Narendra Modi-led government, which argued that privacy was not a fundamental right protected by the constitution.
Privacy is not explicitly mentioned in the Indian constitution, but in a brief statement today, chief justice JS Khehar said privacy was "protected as an intrinsic part of Article 21 that protects life and liberty". The judges were unanimous, he added.
The supreme court set up a special bench to rule on the issue after a legal challenge to the government's Aadhaar biometric programme, which has recorded the fingerprints and iris scans of more than one billion Indians.
Aadhaar was set up as a voluntary scheme to streamline benefit payments to millions of poor people and reduce fraud.
But in recent years it has become compulsory for a growing number of services, including opening a bank account and paying taxes. Companies were also pushing to gain access to Aadhaar details of customers.
The government has rejected suggestions that the programme, set up in 2009, poses a threat to civil liberties, despite personal data being leaked in security breaches.
In May attorney general Mukul Rohatgi rejected suggestions that Indians could refuse to provide their iris scans or fingerprints to the government, telling a court "the concept of absolute right over one's body was a myth".
Critics say the ID cards link enough data to create a comprehensive profile of a person's spending habits, their friends and acquaintances, the property they own and a trove of other information.
"This is a blow to the government, because the
government had argued that people do not have a right to privacy," said Prashant Bhushan, a senior lawyer involved in the case.
A spokesman for India's law ministry was not reachable for comment.
During the hearings the nine-member Supreme Court bench recognised the risk of personal information being misused, and the challenge of protecting such private data in the internet era.
But the judges also acknowledged there must be restrictions within reason on individual privacy.
Constitutional law scholars had said the case would be a test of Indian democracy, with potentially far-reaching consequences if individuals were allowed to challenge laws on the basis of individual rights.
The judgment also has a bearing on broader civil rights as well as a law criminalising homosexuality. A ban imposed on the consumption of beef in many states and alcohol in some could also come up for review.
In an article published by the Times of India last month, two legal experts argued that it would be one of the world's most important legal decisions this year.
"Societies far beyond India will be watching to see what it decides," wrote Eben Moglen and Mishi Choudhary.
"India will, as a result of the Supreme Court’s judgement, take the lead among democracies in recognising and enforcing its citizens’ fundamental right to privacy, or fall in line behind despotic societies in destroying it."
Lawyer Prashant Bhushan said the judgement would have an impact on the Aadhaar programme but it was not yet clear how.
"Any fundamental right is subject to reasonable restrictions by law. Whether the Aadhar Act imposes unreasonable restrictions will have to be examined," he told reporters outside the court.
(AFP, Reuters)
Vikram Doraiswami
Andrew Quintman
Lord Jitesh Gadhia 
