India’s highest court has ruled that citizens have a fundamental right to privacy in a landmark verdict which could jeopardise a government programme containing the biometric data of more than one billion people, including children under five.
A special bench was set up to rule on the issue of privacy after a legal challenge was launched against Aadhaar, the world’s largest biometric ID card programme, introduced by the Indian government in 2009.
The programme requires citizens to submit fingerprints, iris scans and a facial photo in exchange for a twelve-digit number and an ID card.
The government denied suggestions that Aadhaar posed a threat to civil liberties, saying that there is no absolute right to privacy.
In May Attorney General Muku Rohatgi dismissed that idea that Indians could refuse to provide their fingerprints or iris scans for the government, telling the court “the concept of absolute right over one’s body was a myth.”
But on Thursday the nine judges unanimously ruled that the right to privacy is a fundamental right. Chief Justice J.S. Khehar said privacy, which is not explicitly mentioned in the constitution, was "protected as an intrinsic part of Article 21 that protects life and liberty".
Legal experts saw the case as a test of India’s democracy, while civil liberties campaigners have hailed the verdict as a milestone.
Udayaditya Banerjee, one of the lawyers challenging the Aadhaar Act, said: “We always believed we had a right to privacy and today the Supreme Court unequivocally stated that."
Aadhaar was set up to aid benefit payments and reduce fraud but it has since compulsory for a growing number of services, such as opening a bank account, paying taxes and taking school exams. Critics say that the identity card links enough data to form a comprehensive profile of what a person spends, where they live and who they know.
Mishi Choudhary, legal director at the Software Freedom Law Centre in New York, who lauded Thursday’s verdict, described Aadhaar as “a hydra for everything… now I have a digital leash around my neck.”
The judges took into consideration the risk of this data being misused and the challenge of protecting information in the internet era. Aadhaar data has previously been leaked in security breaches.
Jyotiraditya Scindia, a member of parliament for the opposition Congress party, tweeted that this was “a victorious week for India - upholding liberty, dignity and freedom for all.”
But it is not yet clear how the ruling will affect the Aadhaar programme; fundamental rights are still subject to reasonable restrictions by the law. Defeated in their claim that there is no fundamental right to privacy, the Indian government will now have to argue that the restriction placed on privacy by Aadhaar is not unreasonable.
The recognition of privacy as a fundamental right may be used to overturn a controversial 2013 Supreme Court ruling upholding a ban on gay sex and criminalising homosexuality. Thursday’s court criticised the previous ruling and says a decision on the petition against the law will be made later.
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