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Aadhaar, WhatsApp, Section 377: How Right To Privacy May Affect Other Cases

A historic ruling.
Hindustan Times via Getty Images

The unanimous wisdom of nine people decided today the extent to which the State can legitimately have access to, and control, the private lives of 1.3 billion Indians.

Based on the Supreme Court hearings regarding the constitutionality of the Aadhaar, a nine-member constitutional bench on Thursday ruled privacy to be a fundamental right of citizens, guaranteed under Article 21 of the Indian Constitution. However, like all such rights, this one too is likely to be defined with reasonable restrictions, which may be exploited by state and non-state actors to manipulate their ways into the lives of citizens.

Nonetheless, the ruling is historic on several counts. We list here three broad spheres in which it is likely to have a palpable effect, empowering individuals to interact more confidently with the world and forcing the Indian state to reconsider its hold on the private affairs of its subjects.

Although the ruling on right to privacy has its origins in the debate over the mandatory imposition of the Aadhaar scheme, its implications are much wider. With the establishment of the constitutional validity of the right to privacy, the hearings on Aadhaar will continue before the existing three-member bench, who will have a clearer framework to arbitrate over the issue.

While arguing in favour of the mandatory imposition of Aadhaar cards, the Centre has already dismissed the citizen's absolute rights over their bodies. In order to justify the linking of Aadhaar to paying taxes, it drew the example of fingerprints collected from suspected criminals under investigation, as though a civic duty, such as the paying revenues, could be meaningfully compared with a grave offence that can lead to arrest.

The government's attitude appears to derive from its confusion between privacy and secrecy. It's not out of any perverse desire to keep secrets that citizens have raised objections about handing over their biometric and other details to the state. Rather, the concern over Aadhaar pertains to worries over the state's ability to keep such personal information safe in the public domain.

As many as 130 millions Indians had their bank details and confidential data linked to Aadhaar leaked from government websites as of May 2017. Millions more remain vulnerable to more such breaches. Lawyers are hopeful that the verdict on privacy will act as a deterrent for the government's mission. "This verdict is a setback for Aadhaar," as senior advocate Prashant Bhushan said, echoing the sentiments of many common citizens and activists lobbying against its draconian imposition.

The acknowledgement of the right to privacy should have a decisive impact on the course of the WhatsApp case, which is currently being heard by the Supreme Court.

A bench of five judges is hearing a petition challenging popular messaging application WhatsApp's right to share information about its users with Facebook, the US social media giant that bought over the former in 2014. It is suspected that the data sharing policy between the two led to the breach of information of as many as 200 million users of WhatsApp in India.

The Indian government argues that privacy concerns by private bodies should be viewed differently from those related to the government. Even more ironically, the Centre invoked the same Article 21, also cited by the SC bench in its verdict, to justify its stand in the WhatsApp case that right to privacy is guaranteed through the right to life and personal liberty. But the Centre chose to ignore its own logic when it came to the fact that the same principle should apply to itself as well.

With a universal right to privacy now in place, it will be harder to pull off cases of such exceptionalism.

A legally recognised right to privacy is likely to challenge the ways in which personal laws operate in India, especially with regard to those that infringe on an individual's freedom of choice and expression. A prime example of such an instance is the law that criminalises sexual minorities for choosing alternative gender and sexual orientations.

In 2013, the apex court upheld Section 377 of the Indian Penal Code, which discriminates against a section of individuals in society on the basis of their sexual orientation, and placed the onus of repealing it on the Parliament. A writ petition, challenging Section 377 on the ground that it violates the privacy of citizens, is still pending.

In its ruling, the Supreme Court laid down three categories under which the term 'privacy' must fall for an individual to avail themselves of it as a fundamental right: "It must prescribe a procedure; the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) It must also be liable to be tested with reference to Article 14," as News18 puts it.

Now that Right to Privacy is upheld, the Supreme Court's earlier verdict on the rights of LGBTQ+ people is likely to be challenged on firmer grounds and, hopefully, lead to a positive conclusion.

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This article exists as part of the online archive for HuffPost India, which closed in 2020. Some features are no longer enabled. If you have questions or concerns about this article, please contact