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Monday, August 28, 2017

Indian Supreme Court Finds Privacy to be a Fundamental Right

On August 24, a special nine-judge bench of India’s Supreme Court ruled unanimously that privacy is a fundamental right under Article 21 of the country’s Constitution and a part of the freedoms guaranteed by Part III of that Constitution. The landmark judgment came in a case entitled Justice K S Puttaswamy (Retd) vs Union of India.  The case began in 2012 when Justice Puttaswamy filed a petition in the Supreme Court challenging the constitutionality of the government’s Aadhaar biometric scheme on the grounds that it violated the right to privacy.  Successive Indian governments argued that there was no such constitutional right.  As in the US, the word privacy is not found in the Indian Constitution and Indian courts had given conflicting opinions on whether one existed. The massive 547-page judgment, a veritable treatise on privacy, resolved this controversy in a definitive manner and is expected to lead to further challenges to the Aadhaar scheme and to Indian laws banning homosexuality, alcohol consumption and other matters.  Intensified challenges can also be anticipated to tech giants such as Uber, Google and Facebook, as well as to the country’s own start-up industry.

Anticipating the ruling, the Modi Government on August 2 formed a ten-member panel under Justice B N Srikrishna (Retd) with representatives of government, academia and industry tasked with drafting a comprehensive data protection bill.  A few days after the ruling, Minister for Law and IT Ravi Shankar Prasad said that he hoped the new law would be in place by December. While this target date may appear over-ambitious, consultations and work on a comprehensive privacy bill have been ongoing in India since at least 2011 (see the April 2014 report in this blog’s News Archive).  The government, in its response to the ruling, emphasized the court’s finding that privacy is not an absolute right but one in which an appropriate balance must be struck.  Asked whether the stringent privacy requirements that would be forthcoming could scuttle innovation within India, Prasad said: "I am happy that the court has marked innovation as an important criteria where reasonable restrictions can be applied."