Insights & Analyses

OWI Labs op-ed: Key questions on Indian Supreme Court’s privacy ruling

September 6, 2017

The OWI Labs op-ed series breaks down the latest news with an inside look at the identity industry dynamics our team of experts is following. This week, OWI Principal Analyst Kaelyn Lowmaster breaks down the Indian Supreme Court’s ruling on the fundamental right to privacy, and what that means for a country with the world’s largest biometric identity program.

“Let the right of privacy, an inherent right, be unequivocally a fundamental right.”

This concludes the Indian Supreme Court’s unanimous 547-page ruling, issued on Aug. 24, confirming that privacy is a core human right protected under Article III of the Constitution of India. The decision went against both Prime Minister Narendra Modi’s government and Indian legal precedent, and was hailed as a victory by privacy and civil rights activists.

In the time since it was handed down, the ruling has also spurred dire speculation worldwide regarding the implications it might bring. Headlines caution that it has “put tech companies on notice,” it constitutes a “blow to government” and, perhaps most notably, is “damning” for Aadhaar, India’s national biometric identity system in which more than 1.1 billion citizens are currently enrolled.

While it’s true that this new legal definition of privacy might impact on Aadhaar governance moving forward, realistically it will be nearly impossible to dislodge an identity regime that’s as widespread and thoroughly entrenched as the one Indian government has created. To get at the core of both what we’ve learned from this case and what we can expect moving forward, below are four key questions we’ve been tracking:

1. What was actually decided in this ruling?

While the text of the ruling is a sweeping treatise on both the legal and philosophical origins of privacy,  its conclusion is straightforward.

The court decided that privacy is a fundamental right for all Indian citizens. More specifically, India’s constitution guarantees that “no person shall be deprived of his life or personal liberty except according to procedure established by law,” and this bench determined that privacy is protected as basic component of both life and personal liberty.

This also decision explicitly overturns two previous rulings handed down by smaller Supreme Court benches in 1954 and 1962, noting that the meaning of privacy has evolved in the information age.

This means that, while Aadhaar was not explicitly touched on here, future cases regarding data collection, use, and sharing will be decided based on the fact that privacy is now a fundamental right under Indian law.

2. Why is this ruling unique?

This ruling is unique most obviously because the Modi administration was arguing that there is no fundamental right to privacy in India, and the administration lost.

It looks like a pretty dystopian narrative – a government explicitly arguing in a court of law that its people don’t deserve privacy. But what we saw here was a uniquely high-profile forum for hashing out some of the most frequently-heard arguments in public sector privacy debates.

One core argument the Modi government put forth in support of its position is that privacy is an “elitist” concern – that when faced with the choice between privacy and receiving Aadhaar-facilitated food benefits, for example, the right to eat should win. Essentially, that privacy and the right to life are sometimes in direct contradiction.

The court rebuffed this stance in stark terms:

“The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.”

Political and economic rights are inextricably linked, the justices concluded, and protection of privacy is essential for a state to thrive.

The administration also argued that privacy cannot be an “absolute” right – that development goals, national security, and domestic stability require that governments have the ability to violate certain aspects of their citizens’ privacy in order to serve broader goals. Basically, that an individual’s privacy may infringe upon the right to life and liberty of others.

Here the court acknowledged the existence of legitimate government interests in personal data, and the fact that “reasonable restrictions” may sometimes be necessary. However, it further found that robust privacy protections are all the more necessary to determine the scope of that legitimacy.

As other governments are grappling with the strength of their commitment to citizen privacy (as demonstrated by current headlines coming from the U.S. and China, among others), this ruling is an unusually unequivocal, comprehensive, and authoritative public sector voice advocating for citizen privacy and its inherent value to a country.

3. What’s going to happen next?

In terms of immediate next steps, this privacy ruling will likely be an influential piece of evidence to shape ongoing cases ranging from data sharing in social media apps to the criminalization of homosexuality. With privacy as a fundamental right, the legal threshold for observing, collecting, storing, and sharing personal data theoretically becomes much higher.

The government is also expected to produce its first personal data protection law as early as December, which will now have to be drafted within the framework of the Supreme Court’s ruling.

4. Is Aadhaar in trouble?

Probably not. While there will likely be some impact on system governance, there are a few reasons why Aadhaar isn’t in any real danger.

First, this ruling wasn’t a judgment of Aadhaar itself. The decision made no statement about the constitutionality of the system.

There will be a few forthcoming Supreme Court-level cases to watch, however, on whether specific aspects of Aadhaar violate Indians’ now-confirmed legal right to privacy, as well as on the voluntary nature of the system. Will the government be legally allowed to continue mandating Aadhaar registration for an expanding array vital services ranging from school lunches to tax returns? This ruling might help build a case for Aadhaar critics.

But the primary reason Aadhaar is here to stay is how entrenched the system has become since its institution, propelled by the full weight of the Modi government. It’s the hallmark of the digital India development plan and cornerstone of the push for a cashless economy. More than 99 percent of Indians are currently enrolled. The World Bank has held it up as a model. It’s providing the infrastructure for a new tech economy. The government will be reluctant to surrender any of Aadhaar’s functionality, even as additional challenges come to the Supreme Court.

And from a purely logistical perspective, it already has the biometric data of more than 1.1 billion people. That information is already in the possession of the government, and now the legal framework is being constructed to accommodate the existing system, rather than the other way around. What we are seeing with Aadhaar is the world’s largest example of innovation outpacing regulation.

This Supreme Court ruling — and others in the future — will help define how Aadhaar is managed in the future, but we probably won’t see any major changes to the basic elements of the system or the government’s ambitions for it.