‘Constitution Bench’ to Decide India’s Data Privacy Future

(2017) 148 Privacy Laws & Business International Report, 28-31

7 Pages Posted: 1 Nov 2017

See all articles by Graham Greenleaf

Graham Greenleaf

University of New South Wales, Faculty of Law

Date Written: August 31, 2017


This article was written during the hearing of the most important case concerning privacy in Indian history, by a nine Judge ‘Constitution Bench’ of India’s Supreme Court, from July 19 to August 4 2017: Puttaswamy v Union of India. As explained, the case was to ‘determine whether or not privacy is a fundamental right under India’s Constitution. A positive answer will require answers to further questions, including what types of privacy are encompassed by the right, and whether it is only a ‘vertical’ right, enforceable against the State, or a ‘horizontal’ right, enforceable by one private individual against another. It will provide grounds for challenges to the validity of many aspects of legislation at all levels of Indian government, starting immediately with the Aadhaar Act 2016 concerning India’s ID system. If it is a horizontal right, the Indian government could be required to enact privacy legislation to implement the right, and would probably need to do so in any event in order to protect the constitutionality of legislation attacked on privacy grounds.’ [Note: Now that the Court has unanimously given such a positive answer, these consequences are playing out in numerous further cases.] The article outlines the main arguments provided by the petitioners, the government, and their allies.

The article also the cases immediately preceding the Puttaswamy decision, which triggered the establishment of the nine judge constitution bench. Viswam v Union of India concerned the constitutionality of Indian government’s attempt, by s. 139AA in the Income Tax Act, to require mandatory linking of the Aadhaar ID number to a person’s Permanent Account Number (PAN), a 10-digit alphanumeric number allocated by the Information Technology Department to individuals and entities. Despite the Court placing impediments before these plans while the constitutional issues remain unresolved, the Modi government’s ‘let’s see what we can get away with’ approach continues.

Keywords: Privacy, Constitution, India, Fundamntal Right, Aadhaar, Taxation

Suggested Citation

Greenleaf, Graham, ‘Constitution Bench’ to Decide India’s Data Privacy Future (August 31, 2017). (2017) 148 Privacy Laws & Business International Report, 28-31, Available at SSRN: https://ssrn.com/abstract=3062503

Graham Greenleaf (Contact Author)

University of New South Wales, Faculty of Law ( email )

Sydney, New South Wales 2052
+61 2 9385 2233 (Phone)
+61 2 9385 1175 (Fax)

HOME PAGE: http://www2.austlii.edu.au/~graham

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