Prashant Bhushan following the case

India’s Supreme Court rules that privacy is a fundamental right

Image credit: REUTERS/Adnan Abidi

The Supreme Court ruling that privacy is a fundamental right will have an enormous impact on the Indian government’s plan to roll out the world’s largest biometric national ID card programme.

The intention of the programme was to create a universal, secure form of digital ID which could be used to access public services such as unemployment benefits, school exams, tax returns, as well as other services such as banking.

The Aardhar Act 2016 requires that the Unique Identification Authority of India assigns a 12-digit ID number (Aardhar) to every Indian. This number is connected to biometric data about the citizen, such as their photograph, fingerprints and iris scans.

While nearly 1.2 billion Indians are already signed up for the programme, this intended to make Aardhar mandatory for all Indians.

In September 2013, the Supreme Court issued an interim order stating that, “No person should suffer for not getting the Aardhar card in spite of the authority making it mandatory.”

In 2015, court and government clashed again, when the court demanded that the government not make the scheme mandatory, in light of reports that Aardhar was being insisted upon for access to various public services.

The Indian Government, led by Prime Minister Narendra Modi, have argued that privacy is not a fundamental, constitutional right. The 1950 Indian constitution does not guarantee individual privacy as a fundamental right, Modi’s government argued.

“This is a blow to the government, because the government had argued that people do not have a right to privacy,” said Prashant Bhushan (pictured above), a senior lawyer involved in the landmark case.

Opposition parties and other groups have banded together to prevent the complete rollout of the Modi government’s identity card programme.

Critics have argued that this is an infringement of privacy, particularly given that some companies have been pushing to connect Aardhar to their services (for instance, phone numbers and train bookings) and gain access to Aardhar details of customers. The ID cards could link enough personal data to create a detailed profile of a person’s social circle, belongings and shopping preferences.

Every citizen’s information is stored in a centralised database which could be vulnerable to serious data leaks and other security issues. Approximately 130 million Indians had their bank details and other confidential Aardhar-linked data leaked from government websites in May 2017.

The nine judges of the Supreme Court ruled unanimously that privacy was a fundamental right, according to Article 21 of the constitution of India.

“The fact that there was no dissent is an important thing,” said Raman Chima, policy director at digital rights group Access Now. “This made it clear that the government has to protect privacy.”

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