Milestone Decision in Favor of Privacy in India - BestVPN.com
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Milestone Decision in Favor of Privacy in India

Ray Walsh

Ray Walsh

August 30, 2017

In what is considered a massive victory for privacy in India, the Supreme Court of India (SCI) has ruled unanimously that Indian citizens have a fundamental right to privacy. The decision comes amid fears that the government is using the Aadhar system to quickly roll out a unified biometric identification system, which could be used to police the nation. Following the judgment, privacy advocacy group the Electronic Frontier Foundation (EFF) said,

“The judgment’s ringing endorsement of the right to privacy as a fundamental right marks a watershed moment in the constitutional history of India.”

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Up until now Indian citizens’ right to privacy had been in jeopardy because of a series of legal precedents. Two specific past decisions (made in 1954 and 1956) had considerably watered down Indian citizens’ fundamental right to privacy. Over the last eight years, the Indian government used the confusion surrounding privacy to roll out the 12-digit Aadhaar identity card to 1.17 billion Indian citizens.

Why the Need to Rule on Privacy?

The Aadhaar card is attached to the world’s most invasive biometric database. It holds names, addresses, phone numbers, retina scans, fingerprints, and other personal details. Up until last year, the project’s expansion had been slow. However, last year the government passed the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act. That law gave a statutory body called the Unique Identification Authority of India (UIDAI) permission to collect and store data about all Indian citizens.

Since then, the government has been linking the mandatory use of the Aadhaar card to just about anything it could think of: payment of income taxes, the receipt of social benefits, scholarships, opening a bank account, buying real estate… the list goes on.

In some people’s minds, the Aadhaar system is a technological revolution happening before their very eyes. They feel the system can be used to make sure all people have equal opportunities and the same entitlements, as well as to stop crime. To privacy advocates, on the other hand, it appears to be an obvious and calculated move towards an authoritarian, all-encompassing, Big Brother society in which every detail of every citizen’s life is tracked by the authorities. 

Aadhaar: Out of Control

Before last week’s Supreme Court decision (in the Justice K.S. Puttaswamy (Retd) vs Union of India case), the push to attach the Aadhaar system to more and more services had become epidemic. Future plans include requiring the card to buy tickets for public transport. With the total population of India standing at 1.34 billion people and 1.17 billion people already inside the invasive database, it is pretty clear just how successful the drive to enroll people into the database has been.

For the people of India, the card has cunningly been elevated to the status of day-to-day necessity. For the government, that means an ever growing complete population surveillance mechanism. Now, thankfully, a group of nine judges has decided against prior claims – made by the attorney general of India – which found that Indian citizens did not have a fundamental right to privacy.

The unanimous decision is a huge win for privacy within the country, which it is hoped will give courts the precedent necessary to push back against the ever-expanding use of the Aadhaar system.

The Supreme Court Decision

The nine supreme court judges overruled two previous decisions that had created a legal precedent in which privacy was not directly protected by the country’s constitution. The new precedent also overrules a past decision that allowed the right to privacy to be suspended during emergencies.

Furthermore, the new law found that a previous decision, which marginalized LGBT members of the Indian community, was unfounded. It clearly specifies that privacy is a protection afforded to all members of society.

Rahul Matthan, a partner at the Indian law firm Trilegal, said the following about the decision:

“They affirmed the precedential basis of every single privacy judgement in our judicial history, making it clear that even without an express fundamental right to privacy, we are entitled to enjoy the right as it is inherent in our right to liberty and dignity.”

Indeed, the ruling creates an environment in which “privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.”

What Happens Now?

Aadhaar has already gained its place in Indian society as the main method of proof of identity. As such, it seems highly likely that it will continue to be used as an instrument for facilitating government services, benefits, legal entitlements, and in cases concerning compensation, for example.

Beyond that, the weight of responsibility will now fall on Indian courts to use this precedent in order to uphold appeals against Aadhaar in which the right to privacy is believed to have been abused. Sadly, the Indian government has invested a lot in the Aadhaar system – so much so, in fact, that it has been previously described as “too big to fail.”

However, Usha Ramanathan, an independent law researcher who has been studying Aadhaar since 2009, feels that with this ruling, “it is amply clear that Aadhaar shall have to meet the challenge of privacy as a fundamental right.”

For now, then, we will have to wait to see what the court that is due to reconvene later this month decides about Aadhaar on the back of this empowering decision. That case will call on this precedent to decide how the government can and can’t use data held in the Aadhaar database in order to profile citizens and monitor them. As such, this ruling is a highly important. However, it is also only the start of a larger ongoing battle of wills.

Opinions are the writer’s own.

Title image credit: Jirsak/Shutterstock.com

Image credits: Pakhnyushchy/Shutterstock.com, amasterphotographer/Shutterstock.com