Confusion as Indian Supreme Court Compromises on Data Privacy and ID Number

Abstract

The fate of India’s data privacy legislation and its ID system are intertwined, both depending on whether India’s Supreme Court decides that India has an implied Constitutional right of privacy, and whether it extends to data privacy. In a decision in the Puttaswamy Case in August 2015 a three judge bench of India's Supreme Court (i) referred to a ‘constitution bench’ of at least five Justices the existence and content of the constitutional right of privacy; and (ii) in the interim, allowed India’s ‘Aadhaar’ ID number system to continue operating, despite its alleged interference with privacy, but with limitations on how it may be employed.

This article examines the Supreme Court’s decision and the implications of both pro-privacy and anti-privacy constitutional findings for the future of the Aadhaar, and of comprehensive data privacy legislation for India. Since it is unknown how long it will take a constitution bench to be constituted or to reach a decision, the article concludes by explaining why (in the interim) India’s current data privacy rules remain broken and ineffective.

The article concludes that the Supreme Court’s ‘compromise’ in Puttaswamy may turn out to be a capitulation. It may also result in continuing defiance or avoidance of Supreme Court orders by the Executive that is dangerous for India’s constitutional relationships.

Keywords: privacy, data protection, ID, identification, India, constitutiuonal law, Modi government