Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors

Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors , Writ Petition (Civil) No. 494 of 2012. At http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf. Supreme Court of India, August 24, 2017.

International Decisions: Edited by Ingrid Wuerth

On August 24, 2017, the Supreme Court of India issued a rare, unanimous nine-judge decision holding that the right to privacy is protected by the Constitution of India.¹The case is all the more noteworthy because the Court reversed its prior decisions holding that the right to privacy was not protected by the country's Constitution.²It arose out of the government's creation of a national database of biometric and demographic information for every Indian. Rejecting the government's arguments, the Court found that the right to privacy applies across the gamut of "fundamental" rights including equality, dignity (Article 14), speech, expression (Article 19), life, and liberty (Article 21). The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors are trailblazing for their commitment to privacy as a fundamental freedom and for the judges' use of foreign law across jurisdictions and spanning centuries.

The K. S. Puttaswamy decision is a result of a "reference" by a smaller panel of five judges of the Supreme Court to a larger nine-judge panel to decide whether privacy is a fundamental right protected by the Indian Constitution (para. 5). The underlying case challenges the constitutionality of the government's Aadhar project, in which retina scans, fingerprints, and demographic information are stored under twelve-digit unique identification numbers. The government has mandated that Aadhar data be linked to citizens' information from bank accounts, tax filings, medical records, and phone numbers. There is no statute that guards against abuse by unauthorized use of the data or to allow an individual to file a complaint alleging such abuse.³Essentially, under the Aadhar project, a citizen's data now belongs to the Indian government, not to the individual.⁴Without a constitutional interest in privacy, there would be no basis upon which to challenge the regulation and to ensure the protection of the data by the Aadhar project or in other comparable situations.⁵

Twenty-two petitioners challenged the constitutionality of Aadhar. The lead petitioner, K. S. Puttaswamy, a 91-year-old retired judge,...