by Glyn Moody

Filed Under:
aadhaar, biometrics, india, privacy

India's Supreme Court Rules Privacy Is A Fundamental Right; Big Ramifications For The Aadhaar Biometric System And Beyond

from the constitutional-core-of-human-dignity dept

In a move that will have major implications for the online world in India and beyond, nine Supreme Court judges have ruled unanimously that privacy is a fundamental right under the Indian Constitution. As part of a decision spanning 547 pages (pdf) they declared:

Privacy is the constitutional core of human dignity.

The case was brought as a result of a legal challenge to India's huge biometric database, Aadhaar, whose rise Techdirt has been charting for some years. A post on the EFF Web site explains the legal background, and why the Supreme Court decision was necessary:

The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week's judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

Now that a solid constitutional foundation for privacy in India has been affirmed, other judges will proceed with examining the legality of Aadhaar in the light of the many relevant points made in the ruling:

The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar.

A case challenging WhatsApp's new privacy policy that allows content sharing with Facebook is also certain to be affected by the ruling, but the ramifications go far beyond Aadhaar and the digital world. As an analysis in the Economic Times notes, the judgment could lead to the decriminalization of homosexuality in India, as well as affecting laws that restrict a person's right to convert to a different religion, and state-level rules that impose restrictions on animal slaughter. The breadth of those possible impacts underlines just how epoch-making last week's decision is likely to prove.

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  • This comment has been flagged by the community. Click here to show it
    Anonymous Coward, 30 Aug 2017 @ 4:00am

    The best thing about being censored on Techdirt

    I had a dream that I was Reynolds and was writing to Gandhi about my experience in Techdirt Prison. Yes, I understand that kind of twists everything around a little, I was confused too, until I read what I was writing in my dream, it was really interesting:

    Dear Friend,

    As you consider your isolation from the Techdirt community, do not despair. Instead, rejoice and consider the benefits of both your isolation and implied condemnation.

    Just imagine, dear friend, that every one of your posts will eventually appear. In addition, many will be censored, marking them as special to everyone and worthy of inspection and consideration, rather like a certification of a dangerous idea. Consider the censorship admiration on the part of your adversaries, that is, a sign of respect.

    Lastly, consider the benefit of the time delay, as the moderators hold your posts for hours. You don't have to listen to the idiocy of PaulT or the hatefulness of Stephen T. Stone, you can completely ignore them without any social consequence. No one would expect you to go back after such a long delay and be accountable to anyone. You're pretty much off the hook in terms of responding at all.

    Yours sincerely,

    Mike Masnick

    Wow, strange dream right? Anyway, it cheered me up for some reason, hard to explain why.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 4:43am


    Some good news for change.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 30 Aug 2017 @ 5:34am

    Any idea if India's "privacy" blanket would cover inventing their own version of the "right" to be forgotten?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 5:56am

    what we need now is for this to become the norm EVERYWHERE, with no government, industry, company or person able to remove this fundamental right in order to pursue ANYTHING that is to their own advantage, regardless of what the ANYTHING may be!! the first thing that comes to mind is the constant orders for private information from ISPs by Hollywood and the other members of the entertainment industries, always based on virtually nothing but an IP address, which has consistently been proven to NOT identify anyone in particular, all thanks to the brown envelopes handed out by those same industries!! and remember the lives ruined by the practices and the information handed out about innocent people!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 7:14am

    India, Gandhi and the right to privacy

    On 10 January 1908 Mahatma Gandhi was arrested for the first time in South Africa for refusing to carry an obligatory identity document card commonly known as the 'pass'. Gandhi was released in February after negotiations with the government. A few days later, Gandhi was beaten up and severely injured by a compatriot, who accused him of betraying the Indian cause.

    In 1906, the Transvaal government promulgated a new Act forcing registration of the colony's Indian population. At a mass protest meeting held in Johannesburg on 11 September 1906, Gandhi adopted his approach to non-violent protest commonly known as satyagraha (loyalty to the truth) for the first time. He called on his fellow Indians to defy the new law and suffer the punishments for doing so, rather than resist through violent means.

    This plan was adopted, leading to a seven-year struggle in which thousands of Indians were jailed including Gandhi; some were even shot for striking, refusing to register, burning their registration cards, and engaging in other forms of non-violent resistance.

    While the government was triumphant in repressing the Indian protesters, the public outcry stemming from the ruthless methods employed by the South African government in the face of peaceful Indian protesters finally forced South African government under General Jan Christiaan Smuts to negotiate a compromise with Gandhi.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Aug 2017 @ 11:41pm

      Re: India, Gandhi and the right to privacy

      MAHATMA Gandhi considered religion, spirituality, morality, and ethics, in fact, all activities of life, whether personal or public, to be integrated into the search for self-realization. He said in the introduction to his Autobiography; “What I want to achieve... what I have been striving and pining to achieve for 30 years—is self-realization, to see God face to face, to attain Moksha.” In this search, he felt instinctively inspired by the life and teaching of Lord Buddha. He did not see Buddhism as a new religion but, historically, as the most daring effort made to reform and revitalize the sanatan Hindu tradition of India. He saw it as the most revolutionary attempt to propagate the doctrine of ahimsa, or nonviolence, in its widest sense.

      Sitting here alone (my IP is blocked by Techdirt), I see the wisdom in nonviolence, it becomes more and more clear to me. Perhaps my writing can inspire a resolution of the conflict between Techdirt and Shiva and promote Adimsa.

      For example, consider and contrast the spiritual wisdom of the two scenarios outlined below. First, let's set the table of this spiritual insight with one assumption that is not yet real, but grounded in deep (potential) truth and love - Imagine that Mike and Chelsea are a couple, and POTUS and FLOTUS invite them, and Shiva, to broker a peaceful resolution of the lawsuit over dinner in the White House.

      Seated at the table is POTUS next to FLOTUS, then Shiva, then Chelsea, then Mike, next to POTUS. Without a spiritual awakening, this could be a disaster. Food would be served, then Mike would start using his balls to defend his position about hating Shiva. POTOSU would hate that, likely banging his first on the table, shaking everyone's china and fine wine. Chelsea would be looking to Shiva for protection, FLOTUS would be looking to Shiva for attention, both of them tossing their hair and sending clouds of pheromones from under their arms to completely shroud Shiva in a sensual mist. Everyone would be frustrated, no accomplishments possible, just animosity and tension. Shiva would be smiling, probably, on a pheromone high, maybe playing handsies or footsies under the table with both ladies, but spiritual awakening for anyone would not be attained.

      Then consider another, more spiritual scenario. First, Mike begins by offering his first born and only child, Techdirt, at the feet of POTUS. Shiva, moved by the gesture, offers his lawsuit at the feet of POTUS. POTUS, moved by everyone's recognition of the enormity of his power, tears up the lawsuit and gives Mike back his web site. Mike promises to never censor again (mumbling), and Shiva then breaks the awkward silence by talking about the health benefits of non-GMO plants and his extensive practice and study of Tantra. POTUS and Mike break out the cigars, as real men do to celebrate conflict resolution, and Shiva retires to the Lincoln room with FLOTUS and Chelsea to share an unforgettable Tantra experience.

      Ommmmmmmmmmmmmm. Good, right? Adimsa in action.

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 31 Aug 2017 @ 6:01am

      Re: India, Gandhi and the right to privacy

      This is why I've consistently opposed people who recommend violent insurrection as a response to situations they don't like. Gandhi's methods work.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
  • identicon
    Anonymous Coward, 30 Aug 2017 @ 7:35am


    If you read the Wiki article on Miscegenation, especially in the Iberian Peninsula, you can see the global and historical scope of prejudice in a nutshell. Things like eye scans and DNA databases gain new significance in light of world history.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 30 Aug 2017 @ 7:53am

    Color me impressed. I will be cautious though. Words are nice but it's the actions that matter. Taking the US as the supposedly shining beacon of freedom, their Constitution sounds awesome and modern but when you look at what's actually happening there you'll see it's just a word soup Govt couldn't care less when it matters. So let's follow the development of things before popping up our champagnes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 9:07am

    Big Ramifications For The Google, too.

    The CIA/NSA start-up Google's "business model" is stripping persons of privacy under pretense of advertising.

    reply to this | link to this | view in chronology ]

  • icon
    Advocate (profile), 30 Aug 2017 @ 9:08am

    Phew. We finally won one.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 11:45am

    Not that it means much after they killed cash and scanned the entire population.

    reply to this | link to this | view in chronology ]

  • icon
    bobmorning (profile), 30 Aug 2017 @ 1:57pm

    Time for a constitutional amendment?

    What's the likelihood that this gains traction in the USA to propose a constitutional amendment making privacy on par with 2nd and 4th amendment?

    Fully aware that current and past administration wipe their asses with the constitution but it couldn't hurt.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2017 @ 6:44am

    India rules privacy is a right?

    This is where MyNameHere complains that India is a backwater country that uses a caste system, and - worse still - dared to permit schools to photocopy textbooks, so this ruling doesn't count...

    reply to this | link to this | view in chronology ]

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