The Indian Supreme Court has found that privacy is a fundamental right of all citizens. The matter was referred to the Court for adjudication on foot of several constitutional challenges to the introduction of a mandatory national ID programme. The matter was heard before nine members of the Supreme Court in Delhi. The ruling reversed several previous decisions of the Supreme Court by interpreting Article 21 of the Indian Constitution (the right to life and liberty) to include a right to privacy.
The case came before the Supreme Court on foot of several challenges to the Indian government’s attempts to introduce compulsory national identity cards. The ID card system, known as “Aadhaar”, assigns each citizen a card with a unique 12 digit identity number, as well as storing biometric impressions of their fingerprints and faces in a central database. When introduced the cards were only needed to access social welfare payments but are now necessary in order to open a bank account, make large purchases and file tax returns. Over one billion Indian citizens are now registered on the system.
The judges’ ruling sets out that the right to privacy “…is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution”. Having decided on this matter, the legality of the mandatory ID cards is due to come before the Court. It is now incumbent upon the government to demonstrate that the Aadhaar system does not breach citizens’ fundamental right to privacy.
Notably, the judgment also set out that sexual orientation is a fundamental part of personal identity which is protected under the right to privacy. The judgment explicitly clarifies that “[t]he rights of lesbian, gay, bisexual and transgender population cannot be construed to be 'so-called rights'... Their rights are not 'so-called' but are real rights founded on sound constitutional doctrine”. The Supreme Court is due to hear a challenge to Section 337 of Indian’s penal code which criminalises homosexual acts.
The judgment can be read in full here.
Further commentary about the case is available here and here.