An employee demonstrates a biometric door lock that scans the veins inside a user’s finger to confirm their identity. ( Photographer: Michael Caronna / Bloomberg News)

Privacy Is A Fundamental Right, Rules Supreme Court

A nine-judge Constitution bench of the Supreme Court ruled that privacy is a fundamental right in a verdict that would have implications for everything from data protection to sexual preference.

The right to privacy is an intrinsic part under Article 21 that deals with the right to life and liberty, the top court ruled. It overturned two earlier verdicts to the extent that they say there is no fundamental right to privacy.

“The judgement effectively creates for the first time, obligations and responsibilities, for all those companies or government organisations that deal with Indian citizens and their information,” said Rajeev Chandrasekhar, a Member of Parliament and a petitioner in the privacy case. “They have responsibilities to do this in a manner that is responsible and does not infringe on the privacy of the citizens.”

The Constitution bench was set up to rule on the larger issue of privacy after a batch of petitions challenged the move to make Aadhaar biometric ID mandatory for accessing government’s social welfare schemes. The focus now shifts back to the five-judge Supreme Court bench hearing the Aadhaar case as the government pushes to expand its scope to everything from filing taxes and operating bank accounts to buying air tickets.

The final order has six opinions. Chief Justice JS Khehar and Justices DY Chandrachud, S Abdul Nazeer and RK Agarwal have expressed their opinions through one judgment. Justices Sanjay Kishan Kaul, AB Sapre, Rohinton Fali Nariman, Chelameswar and Sharad Arvind Bobde have given additional opinions separately.

The nine-judge bench emphasised on data privacy to “protect the autonomy of an individual”. The Supreme Court said it recognises that the state may have justifiable reasons for the collection and storage of data. “But, the data which the state has collected has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes,” it said.

Petitioners called the verdict a big win.

It’s a very proud moment for every citizen of this country. The citizenry has won. The judgement is ground breaking.
Sajjan Poovayya, Lawyer Who Argued In Favour Of Right To Privacy

In a statement, the government said it gave legislative support to Aadhaar and has already “incorporated in law safeguards with regards to privacy”. It assured the Supreme Court that it will soon come out with a data protection law and has already set a committee for it.

During the course of the hearing, the government had argued that the framers of the Constitution deliberately kept right to privacy out of the purview of fundamental rights. Then Attorney General KK Venugopal argued that while the right to privacy could be accepted as a fundamental right, it would be a wholly qualified one. Right to life would have primacy over right to privacy, he had said.

The petitioners had said that privacy is an inherent concept of liberty and dignity and hence it has the status of a fundamental right under the Constitution. They termed privacy the bedrock which ensures other fundamental rights can be exercised freely.

To counter the government’s argument that privacy as a fundamental right is nowhere mentioned in the Constitution, former Attorney General Soli Sorabjee, representing the petitioners, had cited the example of the right of freedom of press. While it is nowhere mentioned in the Constitution, yet it’s held to be a fundamental right by virtue of Right to Freedom of Speech and Expression, he had argued.

Support For LGBT Rights

Justice Chandrachud, in his separate judgement, voiced support for the LGBT rights, finding the earlier reasoning given by the top court to criminalise homosexuality under Section 377 of the Indian Penal Code as “unsustainable”.

The court had in 2013 ruled that the Delhi High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” to de-criminalise homosexuality.

Justice Chandrachud wrote that this argument is, “in our view, unsustainable”. Sexual orientation is an essential attribute of privacy, he said. The rights of the LGBT community are not “so-called” but are real rights founded on sound Constitutional doctrine”, he wrote.

Chief Justice of India JS Khehar and three other judges on the bench agreed with the view in their respective judgements.

What’s Next

The government has already made Aadhaar must for filing income tax returns, operating bank accounts and buying stocks.

The five-judge bench will now hear the matter. Earlier, it had ordered a “partial stay” on the use of the biometric ID for filing taxes. The apex court, however, did not strike down Section 139AA of the Income Tax Act, 1961 that mandates linking the unique ID with the Permanent Account Number to file taxes. But it allowed those without the biometric ID to file returns. Taxpayers with both PAN and Aadhaar, however, have to link the two.