A nine-judge Constitution Bench of the Indian Supreme Court on Thursday unanimously decided that Indians have a fundamental right to privacy, a protection it read into Article 21 of the Constitution, which guarantees a right to life and personal liberty. The momentous decision, which emerged out of a batch of petitions challenging the legality of the government’s Aadhaar project, was cheered by those who believe it creates a foundation for further progressive litigation and legislation in India. But what Thursday’s decision does not do off the bat is strike down Aadhaar.
The Right to Privacy hearings in the Supreme Court did start because of petitions challenging the validity of Aadhaar, a project to give every Indian resident a unique 12-digit ID that includes their biometric data. Over the course of the Supreme Court’s hearings in the Aadhaar matter, the bench decided that it needed to first settle the question of whether Indians have a fundamental right to privacy. Only then could it take up the question of the legality of the Aadhaar project, which the government has made mandatory for numerous services and expanded massively over the last two years despite orders from the Supreme Court.
Because of the connection to Aadhaar, it is inevitable that most of the initial reactions after Thursday’s decision are connecting the outcome to the Unique Identification project. But much of that is premature. Simply put, the nine-judge Constitution bench was not considering the merits or legality of Aadhaar. It was only examining the broader question of whether Indians have a fundamental right to privacy at all. Now that privacy has been acknowledged as one, Aadhaar will have to be tested against that recognised right – a test that will likely take place through hearings by another Supreme Court Constitution bench.
Until then, Aadhaar remains as it is. It is important to remember that fundamental rights in India all also come with reasonable restrictions. Article 21, under which the right to privacy has been read, states that “no individual can be deprived of his life or personal liberty, except according to procedure established by law”. As an example, the Indian Penal Code allows a government to deprive some people of their life in the form of capital punishment. Similarly, the Supreme Court’s reading of privacy as a fundamental right could easily also open up that right to restrictions based on laws, such as the Aadhaar Act. A full perusal of the Constitution Bench’s opinions will give some sense of this, but the question will only be answered after another Constitution Bench takes up the validity of Aadhaar itself.
Nevertheless, the Supreme Court’s decision does come as something of a blow to the Centre, which has over the past few months questioned whether privacy is a fundamental right – seemingly in an effort to just protect Aadhaar.
But Thursday’s decision will go far beyond the Aadhaar project. For starters, some are asking if this will have an effect on the challenge to Section 377, a provision in the Indian Penal Code that criminalises gay sex. It could also have a bearing on ways that the Indian state collects data and evidence, such as through wire-tapping or in the proposed DNA bill. Private companies are likely to have to justify their collection of data against this right. And the decision might also reshape defamation laws in India, depending on how it understand a right for people to keep their information private.
Aadhaar is one element to this momentous decision, and it is not one that has been settled yet. Indeed, it is likely that it will be some time – and many more petitions – before we fully grasp the import of India officially recognising a Fundamental Right to Privacy.