A Right to Privacy for India’s 1.3 Billion Citizens

Allie Carter (CMC ’19)

India’s Supreme Court asserted privacy as a basic right in August of 2017, formally joining the United States, Canada, South Africa, the European Union, and the United Kingdom in doing so. While privacy as a right does not have an explicit definition, it has generally initially applied to data protection and eventually incorporated the disclosure personal information. As the world’s largest democracy, this newfound right has significant cultural implications for India’s 1.3 billion citizens.  

Indian privacy advocates campaigned for this decision because they were uncomfortable with the breadth of information the government had about each citizen through Aadhaar cards. Aadhaar cards were first introduced in 2009, are 12-digit numbers attached to 1.13 billion registered Indians, and are used as a form of biometric identification. The government believes the biometric data collected from Aadhaar cards can better systemize social programs, such as for pension, welfare, and other means of financial aid. Further, Aadhaar cards are necessary to retrieve welfare and other social services, such as subsidies for rice. Better systematized social programs are important, as studies have shown roughly 84% of each rupee paid as welfare is lost to corruption.

While there is potential for the Aadhaar system to improve Indian social services, a potential database breach could expose many intimate details of one’s life to a hacker. Aadhaar cards track one’s spending habits, medical records, and bank transactions. The Aadhaar system could aid many social systems, but ultimately a great sum of Indian citizens do not want to put their privacy at risk for social programs whose benefits they are not reaping. There have been numerous lawsuits in the lower courts in recent years contending that the Aadhaar system violated one’s right to privacy, which ultimately motivated the Indian Supreme Court to resolve if a right to privacy could be justified by the Indian constitution.

The Supreme Court judges were unanimous in their interpretation of the Indian Constitution, deciding that the right to privacy is innate to the constitutional promise of life and liberty. The Supreme Court further examined the essence of privacy and deemed privacy as a subdivision of liberty because in the choices one makes autonomously and individually, one can decide the extent of his or her own liberty. In declaring privacy a fundamental right, the Indian Supreme Court overruled two prior cases that had raised similar questions in their court, which applied to police searches and surveillance. The 2017 case had a wider scope, as it applied to essentially all of India and to innocent individuals, compared to the prior cases that applied to specific citizens accused of unlawful acts.  

The application of the constitutional principle of privacy is essential to whether India’s 1.3 billion citizens will be able to reap the Court decision’s benefits. Advising lawyer to the case Apar Gupta warns, “unless applied effectively, we might get something purely academic.” If applied successfully, privacy as a basic right could have wide-ranging implications expanding beyond the Aadhaar system. For example, Section 377 of the Indian penal code, which criminalizes homosexuality, could be susceptible to re-examination. Additionally, the recent bans on beef and alcohol could be also argued as unconstitutional with a right to privacy. Subsequent to the Aadhaar system case, the Indian Supreme Court will be hearing an additional case regarding privacy pertaining to the messaging service WhatsApp, and the degree of access the Indian government has to its data. The WhatsApp privacy policy has been discussed by the Supreme Court on numerous occasions without any substantive conclusions. Given the results of the case regarding the Aadhaar system, perhaps the Supreme Court will be more inclined to validate WhatsApp’s privacy policy.

Chief Justice Jagdish Singh Khehar remarked, “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.” In gaining the right to be left alone and to enjoy privacy, Indian citizens are simultaneously gaining a newfound freedom. When the United States Supreme Court first acknowledged the zone of privacy guaranteed by the Bill of Rights in Griswold v. Connecticut (1965), numerous cases followed that further validated privacy as a basic right and ultimately led to greater autonomy for U.S. citizens. Verdicts of Roe v. Wade (1972) and Lawrence v. Texas (2003) led to increased women’s and LBGT rights- both on the grounds of privacy as a fundamental right. The right to privacy inspired a cultural shift in the United States, as it has the potential to do in India. With implications for both society and technology, the establishment of privacy as a fundamental right will undoubtedly inspire great social change in India.

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