India’s top court has unanimously declared that privacy is a fundamental right, in a landmark judgment that could derail the world’s largest biometric identity card scheme.

Privacy advocates hailed the decision by the supreme court on Thursday, which they said could have far-reaching implications including for the decriminalisation of homosexuality and bans on the consumption of beef or alcohol.

A nine-member panel of the court in Delhi found that a right to privacy was intrinsic to article 21 of the Indian constitution, which declares that no person can be deprived of their life or liberty without a procedure established by the law.

A senior lawyer in the case, Prashant Bhushan, told reporters that any laws seeking to restrict privacy, including those surrounding India’s biometric database, would now “have to be tested on the touchstone of article 21”.

The identity programme, first announced in 2009, aims to issue every Indian with a 12-digit “Aadhaar” number, corresponding to records that include a citizen’s fingerprints and eye scans. More than 1.13bn Indians have been registered so far.

The government says the database, which began storing identity records in 2014, will allow it to streamline social programmes in a country where one study has estimated about 84% of every rupee paid as welfare is lost to corruption.

Critics have raised concerns about possibility of breaches in a database that could eventually store enough information to create a comprehensive profile of a person’s lifestyle, purchases, friends, financial habits, and more.

They have also objected to government policies that make the Aadhaar card mandatory to access welfare and social services schemes, including for free midday meals at schools and subsidies for rice and other staples.

Several lawsuits in past years have argued that the Aadhaar system breached the right to privacy, prompting the supreme court to constitute a bench in July to clarify whether such a right existed in the Indian constitution.

Arguing against, the Indian attorney-general KK Venugopal had argued that privacy was too vague a concept to be considered a fundamental right, and that privacy could be overridden by the right to food or shelter, particularly in a developing country.

Apar Gupta, a lawyer advising on the case, said Thursday’s verdict was “very, very positive” for privacy advocates, but cautioned that its possible implications were still unknown.



“The case is a victory, but it still needs to be applied – not only to Aadhaar, but to a lot of other cases,” he said.

“This case was essentially on the existence of the right to privacy, but the true test of a constitutional doctrine is its application. Unless it’s applied effectively, we might get something purely academic.”

One law that may now be vulnerable, Gupta said, was section 377 of the Indian penal code, which criminalised homosexual and other “unnatural” acts.

Laws permitting authorities to tap phones and administer “two finger” sexual assault tests could also potentially be re-examined in light of the judgment, he said.

The supreme court is currently hearing another case with privacy implications involving the right of the popular messaging service WhatsApp, which has more than 160 million users in India, to share information about them with its stablemate Facebook.



Whatever the wider impact, Gupta said it was clear the Aadhaar programme now “stands on questionable footing”, and that earlier cases questioning its scope and constitutional validity were likely to be raised again.

“We can now look towards some form of legal closure on the question of whether the Aadhaar card is legal or not,” he said.

And the bigger, decades-old question of whether India’s 1.3bn citizens had the fundamental right to privacy had also finally been resolved. “At least we have exited this constitutional limbo,” he said.