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Q&A: ‘Right to privacy’ as a fundamental right in India

August 31, 2017
Written by

Vikramaditya Khanna

India’s Supreme Court found itself deliberating a question that has been asked many times recently: Is privacy a fundamental legal right for 1.34 billion people? And it unanimously voted yes.

Vikramaditya Khanna, the William W. Cook Professor of Law at the University of Michigan, discusses the decision and its implications.

How did the right to privacy case come to the Indian Supreme Court?

Khanna: This case came to the Supreme Court because a few years ago a public interest litigation was filed by a retired judge of Karnataka’s High Court [Justice K.S. Puttaswamy (Retired) and Another v. Union of India and Others, Writ Petition (Civil) No. 494 of 2012] challenging the Aadhar scheme on multiple grounds.

Aadhar is a unique 12-digit identity number issued to all Indian residents and is the world’s largest biometric ID system where over 1 billion individuals’ data having been collected by the Unique Identification Authority of India. The Aadhar number can be used for government benefits, collect taxes, monitor financial transactions and much more.

The original case was heard by a three-judge bench, who saw the issue of privacy as one of great significance and referred the matter to a Constitution Bench. The Constitution Bench of nine justices was assembled to hear the case about the right to privacy (and) who unanimously voted yes.

The debate over whether there is a constitutional right of privacy has raged for some time with some court opinions being skeptical of such a right and others holding that there is such a right within Article 21 (right to life and liberty) and perhaps other important rights listed in Article 19.

Why is this judgment important at this time? Do many countries have a separate right to privacy law?

Khanna: Many countries like the United Kingdom, the U.S., Canada, EU, South Africa have some kind of right to privacy, but the extent of the right varies. The court’s discussion of the right to privacy in India indicates that it is broad and likely to develop as circumstances change. Some of the justices also indicate that its contours may be quite broad and include regulation of non state actors, too.

This is one of the most important recent judgments of the Supreme Court of India as it likely applies to government efforts to prevent fraud in social programs and enhances the formal sector, police terrorism activities and so forth, as well as e-commerce initiatives. It also implicates fundamental civil rights and liberties.

Privacy is not absolute (none of the key constitutional rights are) and can be subject to regulation. If a concern arises under Article 21 then the court laid out the test to be:

1. Law must be in existence to justify encroachment.

2. Involves non-arbitrary pursuit of a legitimate state aim/need (e.g., the state’s aim is connected to the law and its operation, which is part of Article 14).

3. Involves means which are proportional to the object and needs sought to be fulfilled by the law (again to prevent arbitrariness).

If the concern arises under Article 19 (fundamental rights), then the test is similar to Article 21, but also includes:

1. That the law must be tailored to achieve the purposes indicated and

2. Meets the relevant requirements of Article 19(2) through (6).


Is this being seen a ruling against the government?  

Khanna: On its face, the decision finds in favor of the petitioner (those who sought  recognition of a constitutional right to privacy) and not in favor of the respondent (the government). However, the court did not hold that privacy is absolute, and the government’s role will depend on whether it meets the tests set out for encroachments on the parts of privacy at issue.

The decision does not overturn Aadhar or any other government scheme, but it lays out the tests that will be used to adjudicate whether the government’s schemes might infringe the multifaceted right to privacy.

It is noteworthy that the government has already constituted a high-level committee under the chairpersonship of Justice B.B. Srikrishna to inquire into what steps can be taken to protect citizens from unwarranted intrusions and see the steps the government has taken to address the potential risks to privacy.


What would be some of the implications of the ruling?  

Khanna: The most immediate consequences are:

1. Aadhar scheme will need to satisfy the tests laid out by the court.

The case on Aadhar is still pending and hence it may take some time, but the contours of what the government may need to do to satisfy constitutional scrutiny is provided in this decision.  The government will need to show how it is planning to protect individuals from unwarranted invasions of their privacy and protect information that is collected.

2. LGBT rights have a boost from the judgement.

A number of the justices quite clearly stated that their recognition of a constitutional right to privacy carries with it the implication that the Section 377 ruling is on shaky footing.  This would be a boost for LGBT rights. The court does not appear to have recognized LGBT rights under the right to equality as yet, but recognizing a right to privacy that applies to LGBT is an important step.

3. ADM Jabalpur (a case from the time of emergency) has been overruled (although it was effectively overruled soon after it came down by parliamentary moves). This has importance for any attempts to legislatively suspend privacy and also for recognition of the rights in Article 21 as being not just created by the constitution.

4. It is possible it may impact the beef ban cases if the right is interpreted to include what food people eat or their profession in some sense (e.g., butchers).

5. Moving forward, there are interesting issues about what the right to privacy means for e-commerce, attempts to battle corruption and black money, surveillance activities and so forth.

6. Moreover, some of the statements in the judgment do open up the possibility that further rights might get recognized that are not specifically enumerated in the constitution. Moreover, the ruling is fairly clear that the right to privacy pre-dates the constitution and hence is not just created by the constitution. The implications of this line of reasoning are not entirely clear as yet, but it allows for greater recognition of rights and potentially greater constitutional scrutiny.

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