Indians get fundamental right to privacy, impeding Modi’s graft fight

India’s top court ruled that individual privacy is a fundamental right, a verdict that could derail the world’s largest biometric ID card programme.
India’s top court ruled that individual privacy is a fundamental right, a verdict that could derail the world’s largest biometric ID card programme.PHOTO: REUTERS

NEW DELHI (BLOOMBERG, REUTERS) - India’s top court has ruled that citizens have a fundamental right to privacy, a potential setback to the government’s plan of using its vast biometric identification programme in everything from mobile connections to income-tax filings.

In an unanimous verdict, nine judges of the Supreme Court ruled on Thursday (Aug 24) that privacy was a part of the fundamental right to life and liberty guaranteed under the country’s constitution.

“Right to privacy is an intrinsic part of right to life,” Chief Justice J.S. Khehar said while reading out the verdict.

The ruling by a rare nine-judge bench came after a referral from a smaller panel hearing a challenge to India’s biometric identity programme, Aadhaar, which has signed up more than one billion Indians.

It also will impact the workings of a host of global corporations in India such as Alphabet's Google search engine, Facebook's social network and its WhatsApp messaging platform as well as technology companies such as Apple and Uber, which deal with the data of individual users on a day-to-day basis.

FIGHTING CORRUPTION

Aadhaar, which means “foundation” in Hindi, is a 12-digit number provided to citizens after collecting their biometric information – finger prints and an iris scan – along with demographic details and a mobile phone number.

It was originally designed to stop the pilfering by middlemen of government subsidies for the poor, by underpinning a citizen’s ID with biometric data, and to save money as the government doles out social security benefits.

The Aadhaar programme has gradually become a key component of Prime Minister Narendra Modi’s push to make India a cashless society. Mr Modi’s government has attempted to make Aadhaar compulsory for a number of government services ranging from school meals for students to paying taxes, raising concerns about privacy and data theft.

“Aadhaar’s architecture will now have to be tested on the touchstone of privacy being a fundamental right,” said lawyer Sajan Poovayya, who represents lawmaker and entrepreneur Rajeev Chandrasekhar, one of the petitioners.

“If Aadhaar has to pass the muster, its architecture should not impinge or erode this fundamental right to privacy.”

In India, anything considered a “fundamental right” has constitutional protection and cannot be taken away, except for rare exceptions such as national security. Law officers of the federal government had argued in court that privacy was not a fundamental right and an individual’s right to their body is not absolute.

Law Minister Ravi Shankar Prasad said the ruling was an affirmation of the government’s stand that privacy was a fundamental right, but subject to reasonable restrictions.

He said it was not a setback to the government’s plans for Aadhaar, and noted that the court is separately looking into the legality of the Aadhaar Act.

AADHAR ADOPTION

Sensing the government’s eagerness to incorporate biometric data in citizens’ daily lives, private companies have been enthusiastically adopting Aadhaar, using it to authenticate job seekers, blood donors and loan applicants.

Samsung offers devices with Aadhaar-compliant iris scanners embedded, while Microsoft integrated the biometrics into its Skype video-chatting service so users can authenticate themselves using the government database.

Some of the arguments against Aadhaar have focused on the government’s decision to make enrolment compulsory to receive welfare benefits. Another concern raised was that data could be used to track a person’s movements and transactions. Petitioners cited several instances of numbers and personal details being leaked or sold online.

The legal validity of mandatory use of the Aadhaar programme will now be scrutinized by a smaller bench in the light of the verdict on Thursday.

“Now that the Supreme Court has ruled that the right to privacy is a fundamental right, the court can examine whether Aadhaar violates this fundamental right,” said Mr Rahul Matthan, a privacy lawyer and partner at law firm Trilegal.