In a landmark decision, a nine judge bench of the Supreme Court of India ruled today that privacy is a fundamental right protected by the Constitution of India.

Background

Due to the volume of cases brought before the Supreme Court of India, cases are generally heard by benches consisting of a subset of the ten justices of the Supreme Court.  The question of whether there is a constitutionally protected right to privacy arose in a 2015 case brought before a three judge bench of the Indian Supreme Court challenging the legal validity of the Government of India’s Aadhaar program.  Under the Aadhaar program, the Unique Identification Authority of India (UIDAI), an Indian government authority, is charged to assign a twelve digit unique identification number (UID) to each of the over 1.3 billion residents of India.  Each resident’s UID is linked to certain biometric information of the resident including his/her photograph, fingerprints and iris scans.  The UIDs are used by the government for a variety of purposes including to eliminate fraud in connection with the dispensing of benefits under various government welfare programs.  The three judge bench in the Aadhaar case determined that to assess the case appropriately, a determination of whether the right to privacy is a fundamental right protected by the Constitution of India was required by a larger bench of Indian Supreme Court justices.  Given that the 1954 case of M.P. Sharma et al. v. Satish Chandra, District Magistrate, Delhi et al. holding that privacy is not a right guaranteed by the Indian Constitution was decided by an eight judge bench, a larger bench of nine Supreme Court justices was convened to determine whether the rationale of the M.P. Sharma judgment and others which similarly found that the Indian Constitution does not guarantee a right of privacy was based on “jurisprudential correctness.”  This bench of nine justices of the Indian Supreme Court listened to arguments presented over six long days spread over three weeks.

The Judgment

Today’s 547 page judgment by the Supreme Court of India consists of one opinion signed by four justices and five separate concurring opinions. It reads like tome on the theory and jurisprudence of privacy law.  The judgment includes a comparative analysis of privacy laws and court judgments of the United Kingdom, the United States, South Africa, Canada, the European Union and the treatment of privacy under the European Convention on Human Rights, the European Charter and the Inter-American Court of Human Rights.  It also considers critiques of the privacy doctrine and existing Indian case law containing conflicting views on whether privacy is a fundamental right protected by the Indian constitution.

The extensive analysis conducted by the bench has rendered a decision that is unequivocal: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 [of the Indian Constitution] and as part of freedoms guaranteed by Part III of the Constitution.”

Part III of the Indian Constitution is India’s “bill of rights” which enumerates the fundamental rights guaranteed by the Indian Constitution. Article 21 states “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

In today’s ruling, the court states that life and personal liberty are not creations of the Constitution they are “rights that are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within” and that “privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.”  The court goes on to state that “privacy is the constitutional core of human dignity” before clarifying that like all of the fundamental rights enumerated in Article III of the Indian Constitution, the right to privacy is not an absolute right but rather is subject to permissible restrictions on fundamental rights.  A law which encroaches on the right to privacy may be valid if it is otherwise legal, it fulfills a legitimate aim of the state and it is based upon a rational connection between the objective of the law and the means adopted to achieve the objective.

Impact

Whether this case will affect the legality of the Aadhaar program remains an open question.  The court does state in its judgment that the state may have justifiable reasons for the collection and storage of data and that objective of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of data. If data collected under the Aadhaar program is used for legitimate state interest and not for purposes unrelated to a legitimate state interest, the program, and the collection of personal and biometric information through the program, may be held to be legal.

Apart from the impact this case may have on deciding the legality of the Aadhaar program, the case may also impact how future cases dealing with other issues such as gay rights and procreation may be decided by recognizing that privacy includes matters to sexual orientation and procreation.

Further, as part of its judgment, the court has identified the need for the Government of India to examine and put into place a robust regime for data protection. Accordingly, today’s judgment may lead to the further development of privacy laws and regulations in India.

We will continue to monitor the development of privacy laws in India and publish updates here as appropriate.