Privacy & Information Security Law Blog

Stephen Mathias of the law firm Kochhar & Co. reports from India that in a landmark judgment delivered in August 2017, the Supreme Court of India (“Court”) unanimously held that the right to privacy is a fundamental right under the Constitution of India. The Court also delivered six separate concurring judgments, with the main judgment being delivered by four of the nine judges.

The Court held that the right to privacy is part of the right to life and on the same footing as the right to human dignity. The Court has previously held that many other rights are part of the right to life. It also held that the right to privacy is part of other fundamental rights, including the “freedom rights” (e.g., right to speech, movement, etc.).

Constitutional law experts have hailed the judgment as perhaps the most significant judgment delivered by the Court in decades, as the Court looked more deeply at how the right to privacy could apply. For example, the Court frowned on a recent two-judge bench judgment that had upheld criminal punishment for gay sex. One of the concurring judgments also stated that laws that seek to regulate what people eat could infringe on privacy. This is relevant to pending cases challenging bans on cow slaughter in some states in India. More importantly, it appears the nine-judge bench used their rare large bench strength to shift India towards a greater focus on protecting individual rights over jurisprudence in favor of state power.

India is one of the last remaining constitutional democracies not to have a comprehensive privacy law. The judgment sets India on a path to having such a privacy law—the Government announced midway through the hearings that it had appointed a committee to draft a new privacy law. The panel is headed by a retired High Court judge, but consists mostly of bureaucrats and technology academics. The head of the Data Security Council of India is a member, but there is only one lawyer on the committee. The committee head has, however, announced that he intends to consult experts and hold public hearings.

India has long had relatively weak laws with respect to privacy, but now has an opportunity to draft a modern and well-balanced comprehensive privacy law. As the largest destination for offshoring in the world, so much of the world’s data is processed in India. Comprehensive privacy legislation in India would surely be a key asset in the world of outsourcing.

Stephen Mathias co-chairs the Technology Law Practice of Kochhar & Co., a leading law firm in India that does substantial work in the privacy space.