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Supreme Court rules that Privacy is a fundamental right in a unanimous ruling

The Supreme Court of India ruled that Privacy is a Fundamental Right in a unanimous 9-0 ruling, finally addressing a long pending and much-debated issue, and in a way, addressing the issue of the relationship between the state and the citizen. This verdict essentially upholds the right to privacy of a citizen as primary, and thus limits the rights of the government/state to make laws/rules that infringe on these rights. This will have an impact on the ability of the state to conduct surveillance, and to force citizens to part with their data to the state. It means that if the state makes laws that infringe on privacy as a fundamental right, a citizen can challenge the government in court.

While the government has mooted a data protection law, and set up processes and committees for it, these are by no means an adequate substitute for a fundamental right.

We’ll have more details on the specific exceptions once the verdict is out.

This judgment is particularly significant, given that the government is setting up public repositories of personal data, with the ability for businesses to take data from them.

What happens next

Remember that the issue of whether Privacy is a fundamental right or not is separate from the Aadhaar cases, which contest the mandatoriness of Aadhaar, and the state’s collection of data and mass surveillance, from the perspective of Privacy as a fundamental right. From a legal perspective, this is now going to be mentioned to a smaller bench of the Supreme Court, which is going look into the issue of Aadhaar, on the basis of the Supreme Court judgment.

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At present, there are two processes running in parallel, for determining the contours of data protection: a TRAI consultation, and a data protection committee from the MEITY. Apart from this, the Ministry has also apparently drafted a data protection bill. There are two other bills already in Parliament: Jay Panda has submitted his, and Shashi Tharoor (we’ve heard), is heard working on his.

How it all began

 “Violation of privacy doesn’t mean anything because privacy is not a guaranteed right” – Mukul Rohatgi, (now former) Attorney General of India. [source]

It began with the Aadhaar challenge in August 2015, where the basis of challenging the Aadhaar project was that of privacy as a fundamental right, apart from the denial of welfare to citizens, because of failure of biometrics or the absence of an Aadhaar number. Rohatgi had then focused its remarks on trying to get this case referred to a seven judge bench of the Supreme Court, saying that past judgments have indicated that there is no fundamental right to privacy, and any ruling to the contrary needs to be from a Supreme Court bench of greater numbers than the three judge bench by which this case is currently being  heard by.

This was the government’s ruse for buying time so that Aadhaar enrollment could be continued and accelerated, thus any delay would have rendered Aadhaar an fait accompli.

That’s exactly what happened. It took well over 700 days for the Supreme Court to even consider constituting a larger bench to decide on this issue, which it then did within a day.

Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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