A rare nine-member Supreme Court bench is hearing the case triggered by a petition challenging the mandatory use of national cards which critics say invades on privacy.
India's Supreme Court will hear more arguments on Thursday to determine whether individual privacy is a fundamental right protected by the Indian constitution, in a ruling legal scholars say will have far-reaching consequences.
The court has set up a rare nine-member bench to rule on the matter triggered by a petition – that was heard on Wednesday – challenging the mandatory use of national identity cards, which are known as Aadhaar or unique identification (UID), as an infringement of privacy.
According to English-language news channel India Today, the court said that there is a need to define privacy before shifting the hearing for Thursday.
The nine-judge bench said there is a "need to clarify whether privacy is protected under Right to Life, Freedom of Expression or Right to Equality" of the Constitution, the channel quoted the court's observations.
The court noted that "right to privacy" was in fact too "amorphous" a term, the English language newspaper The Hindu reported.
Privacy is not recognised as a fundamental right by Indian constitution or law.
Issue of immense importance
Constitutional experts say if the court decides privacy is a fundamental right, it could open up to review a law criminalising homosexuality, a ban on the consumption of beef in many states and an alcohol ban in some.
"The consequences are huge," said constitutional scholar Menaka Guruswamy.
"This goes far beyond Aadhaar. The ruling will decide the manner in which constitutional democracy will endure."
India's government has argued in the past that the constitution, which came into effect in 1950, does not guarantee individual privacy as an inalienable fundamental right.
When I started working on this theme in 2006, all I heard was people saying there was no #RightToPrivacy in India, it was alien & western.— Malavika Jayaram (@MalJayaram) July 19, 2017
Biometric cards vs privacy
Critics say the 12-digit UID card links enough biometric and demographic data to create a comprehensive profile of a person's spending habits, their friends and acquaintances, the property they own, and a trove of other information.
There are fears the data could be misused by a government that argues Indians have no right to privacy.
The enrolment for UID was "voluntary" but over the years India made it mandatory for at least 106 schemes and services. Critics say the government has forced the UID on its citizens through service-providing agencies and the date isn't secure.
In May, security researchers discovered that the UID information of as many as 135 million people had leaked online.
"A centralised and inter-linked database like Aadhaar will lead to profiling and self-censorship, endangering freedom," argued Reetika Khera, an Indian economist and social scientist.
Crores of rural & urban poor see Aadhar as tool of empowerment. They don't even know elite anti-Aadhar echo chambers exist & they don't care— Shekhar Gupta (@ShekharGupta) March 27, 2017
Hopefully we should get the constitutional right to privacy back tomorrow. Astonished the Union Government disputes it in 2017.— Apar (@aparatbar) July 18, 2017
Guruswamy said the concern was that if the court were to throw out privacy as a basic right, it would give the state much greater powers to monitor people and to enact laws with an impact on personal freedoms.
"If the court rules for the government, then it's going to impact all kinds of footprints of citizens, both professionally, and in their private lives," Guruswamy said.
"It will impact my right to my body, to what I do at home, my communications, and everything else."
If eyes are always upon me, the whole world becomes my prison. #Myprivacymyright— Karuna Nundy (@karunanundy) July 18, 2017
Critics say personal rights have come into sharper focus since Prime Minister Narendra Modi's ruling alliance took office in 2014 as it pushes a nationalist agenda at the cost of individual freedoms.
Privacy is a privilege for the filthy rich and corrupt corporates. The rest of India is under invasive surveillance. https://t.co/Ar6gy38juJ— Dipankar (@Dipankar_cpiml) July 19, 2017
Alok Kumar Prasanna, a lawyer based in Bengaluru, said a court decision upholding privacy would come in conflict with the conservative leanings of the ruling coalition whose "basic cultural agenda is that the majority can impose its choices on the minority, or restrict their choices on anything, from food to sexual orientation."