Is Privacy a Fundamental Right?

By: Shivani Verma

With the abundance of personal information we give to tech companies, there is now an unprecedented need for laws regulating how our information can be used, processed, and stored.[1] India’s Supreme Court decided privacy is a fundamental right.[2] The Court’s decision affected the1.34 billion people protected under the Indian Constitution.[3]

In Justice K.S. Puttaswamy (Retd) vs Union of India, India’s Supreme Court announced its historic ruling that privacy is part of the fundamental rights to life and liberty protected by the country’s constitution.[4] All nine justices on the Court unanimously agreed that "[p]rivacy is the constitutional core of human dignity."[5] Chief Justice Jagdish Singh Khehar borrowed from former U.S. Supreme Court Justice Louis Brandeis and compared privacy with the "right to be let alone."[6] Khehar wrote: "The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual."[7]

This case was brought before the Court by privacy advocates who challenged a government scheme that utilizes the Unique Identification Authority of India (UIDIA) and assigns every Indian a unique identification, through an "Aadhaar" card.[8] Aadhaar is a project that aims to compile a database of biometric information covering every Indian.[9] The point of Aadhaar was to create a single, unique identification document or number that would link the lives of all people together.[10] Aadhaar links fingerprints and iris scans to a unique 12-digit number—UIDIA number.[11] This number would be the same across all of a person’s accounts at various businesses.[12] Now, Aadhar is also the basis for banks’ regulatory reporting of customer information.[13] More importantly, Aadhaar serves as a way for disadvantaged people to access services they have been denied because they lacked identification documents.[14] The original justification for introducing Aadhaar was to ensure government benefits reached the intended recipients.[15] Modi's government recently stepped up enrollment as part of its 'Digital India' program, making registration mandatory for people to access crucial social benefits such as a rural wage welfare program.[16] At trial, critics argued the collection of biometric data in connection with the card was intrusive and could plausibly connect personal information such as “data to a person's spending habits, medical records and even bank transactions.”[17]

The government argued that the scheme did not violate any rights protected by the India’s Constitution.[18] The government took the position that there was no fundamental right to privacy under the constitution.[19] The government’s argument was based on two previously decided cases—MP Sharma vs Satish Chandra in 1954, and Kharak Singh vs State of Uttar Pradesh in 1962—that held privacy was not a fundamental right.[20]

In M.P Sharma, the bench held that the Indian Constitution does not contain any language similar to the Fourth Amendment of the United State’s Constitution.[21] Therefore, the drafters of the Indian Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy.[22] Importantly, in M.P Sharma, the Indian Supreme Court made clear that its decision has no bearing on “whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21.”[23]

In Kharak Singh, the Indian Supreme Court’s decision invalidated a Police Regulation that allowed for visits to a person’s house at night.[24] The court called these visits an “unauthorized intrusion into a person’s home and a violation of ordered liberty.”[25] However, the court held that other clauses of the Regulation were Constitutional on the ground that the right of privacy was not guaranteed under the Constitution.[26] Thus, the Court concluded Article 21 of the Indian Constitution—the right to life and personal liberty—had no application to the case.[27]

In Justice K.S. Puttaswamy (Retd) vs Union of India, the Attorney General argued that the framers of the Indian Constitution never intended to protect a right to privacy.[28] The Attorney General argued that by reading the right to privacy as intrinsic to the right to life and personal liberty under Article 21 would be effectively rewriting the Constitution. The Attorney General further argued that the right to privacy has no place under Article 19 of the Indian Constitution, which protects the rights to various freedoms—such as the freedom of expression.[29] The government also argued that privacy was too vague for a precise definition and should not be declared a fundamental right.[30]

In the present case, the Indian Supreme Court effectively overturned its previous ruling. The one-page order signed by all nine judges declares: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”[31] The judges state their reasoning in the judgment. The judgment, which explains the rational behind the one-page order, is 547 pages long and includes opinions from six judges.[32] The judgment analyzes and creates a legal framework for privacy protections under the Indian Constitution.[33] The opinions from six judges cover a wide range of issues, which clarify that privacy is a fundamental inalienable right, intrinsic to human dignity and liberty.[34]

The Court’s decision is especially relevant today given the rapid growth of Aahaar. As mentioned above, the privacy ruling arose from a pending challenge to India's biometric identity scheme.[35] The Court has previously discussed the privacy and surveillance risks associated with that scheme.[36] Ambiguity on whether privacy is a Constitutional right in India allowed the government to collect and compile demographic and biometric data of residents.[37] With over 1 billion Indian citizens registered, Aadhaar it is the largest biometric database in the world.[38] The government's efforts to establish the Aadhaar project have led to its wide acceptance.[39] Using biometrics as proof of identity, Aadhaar is an instrument for restructuring and facilitating government services.[40]

By holding that privacy is a fundamental right protected under the Indian Constitution, the Indian Supreme Court has adopted the view of most developed nations in the world—including the United States. "This is not just a legal victory. It is a moral victory," said Nikhil Pahwa, the co-founder of the Internet Freedom Foundation, and founder of the technology site Medianama.[41]

[1] Rishi Iyengar, Privacy is now a right in India. Here's what that means for the tech industry (Aug. 29, 2017),

 http://money.cnn.com/2017/08/29/technology/india-right-to-privacy-tech-industry-aadhaar/index.html.

[2] See Id.

[3]  Ravi Agrawal, India Supreme Court rules privacy a 'fundamental right' in landmark case (Aug. 24, 2017), http://www.cnn.com/2017/08/24/asia/indian-court-right-to-privacy/?iid=EL.

[4] Id.; See also India Const. art. 21.

[5] Indian Supreme Court Declares Privacy A Fundamental Right, npr (Aug. 24, 2017), http://www.npr.org/sections/thetwo-way/2017/08/24/545963181/indian-supreme-court-declares-privacy-a-fundamental-right.

[6] Id.

[7] Id.  

[8] Id.

[9] Id.

[10] Id.

[11] See Iyengar, supra note 1.

[12] Inside Aadhaar, India’s massive digital identity program, Tearsheet (Aug. 22, 2017), http://www.tearsheet.co/data/inside-aadhaar-indias-massive-digital-identity-program.

[13] Id.

[14] Id.  

[15] Jyoti Panday, india's Supreme Court Upholds Right to Privacy as a Fundamental Right—and It's About Time, Electronic Frontier Foundation (Aug. 28, 2017), https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time.

[16] Agrawal, supra note 3.

[17] Indian Supreme Court Declares Privacy A Fundamental Right, supra note 5.

[18] Panday, supra note 15.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Indian Supreme Court Declares Privacy A Fundamental Right, supra note 5.

[36] Panday, supra note 15.

[37] Id.

[38] See Id.

[39] Agrawal, supra note 3.

[40] Panday, supra note 15.

[41] Agrawal, supra note 3.