India’s Supreme Court began hearing arguments on Wednesday to determine whether individual privacy is a fundamental right protected by the constitution, in a ruling that would set boundaries for citizens and states.
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The court has set up a rare nine-member bench to rule on the matter triggered by a petition challenging the mandatory use of national identity cards, which are known as Aadhaar, as an infringement of privacy.
Constitutional experts say if the court decides privacy is a fundamental right, it could open up to the review of a law criminalizing homosexuality, the consumption of beef in many states and alcohol in some areas.
Senior advocates Soli Sorabjee, Gopal Subramanium, Shyam Divan and Arvind Datar argued in favor of recognizing the right to privacy as a fundamental right, saying that privacy is an intrinsic facet of liberty.
“The right to liberty means the right to make personal choices, the right to develop one’s personality, one’s aura, one’s thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe,” Subramanium said on Wednesday.
“For all this, one needs privacy. So the right to liberty and to lead a life of dignity includes the right to privacy.”
He added that the right to privacy is recognized as fundamental under the constitution and that the state is under affirmative obligation to protect it.
“How do we define privacy? What are its contents? Its contours? How can the State regulate privacy? What obligations do the State have to protect a person’s privacy?” Justice Chandrachud asked the petitioners.
The court said privacy is not absolute and cannot prevent the government from making laws imposing reasonable restrictions on citizens. To recognize privacy as a definite right, it had to first define it, the court added.
India's government has argued in the past that the constitution, which came into effect in 1950, does not guarantee individual privacy as an inalienable fundamental right.
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Critics challenging the constitutional validity of Aadhaar alleged that it violated a citizen's right to privacy by linking enough data to create a comprehensive profile of a person’s spending habits and other activities.
In May, security researchers discovered that the Aadhaar information of as many as 135 million people had leaked online, while the agency that governs Aadhaar repeatedly said that its data is secure.
"This goes far beyond Aadhaar. The ruling will decide the manner in which constitutional democracy will endure," constitutional scholar Menaka Guruswamy said to Reuters.
"If the court rules for the government, then it's going to impact all kinds of footprints of citizens, both professionally, and in their private lives."