Indian Supreme Court Rules That Privacy is a Fundamental Right

This is good news for privacy rights.

Last week’s unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) vs Union of India is a resounding victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. 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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The lead judgment calls for the government to create a data protection regime to protect the privacy of the individual. It recommends a robust regime which balances individual interests and legitimate concerns of the state. Justice Chandrachud notes, “Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state.” For example, the court observes, “government could mine data to ensure resources reached intended beneficiaries.” However, the bench restrains itself from providing guidance on the issues, confining its opinion to the clarification of the constitutionality of the right to privacy.

The judgment will also have ramifications for a number of contemporary issues pending before the supreme court. In particular, two proceedings—on Aadhaar and on WhatsApp-Facebook data sharing—will be test grounds for the application and contours of the right to privacy in India. For now, what is certain is that the right to privacy has been unequivocally articulated by the highest Court. There is much reason to celebrate this long-due victory for privacy rights in India. But it is only the first step, as the real test of the strength of the right will in how it is understood and applied in subsequent challenges.