Right Tied In Tangles

The union government has told the Supreme Court (SC) that it is “techni­cally impossible” for it to track citizens using Aadhaar, the 12-digit unique biometric-­based identity number that over 1.6 billion Indians possess. Arguing an ongoing case on behalf of the government this week, additional solicitor-­general Tushar Mehta pointed to safeguards in the Aadhaar law to rule out mass “surveillance”. He also told the court that “nothing” could be private in the age of Internet. This, more than anything else, could decide the outcome of a case involving over a dozen petitions on whether Indians had a basic constitutional right to privacy. After concluding arguments, the court reserved its judgement.

Indians traditionally have had little qualms about privacy. In small-town homes, it’s common for the main entry door to be kept ajar, the interiors shielded by only a curtain. In contrast, a house all bolted up is usually a sign of something amiss. Marriages are a boisterous affair, where guests and horse-riding grooms alike revel in public. In villages, women walk long distances to fetch water and men huddle by roadsides. So, why is privacy a hot-button issue now? It’s got to do with the pervasive use of Aadhaar for government services as well as private-­sector transactions. It’s been a case of flips flops and ambiguous stands.

The SC had already ruled that right to life—a fundamental right—includes the right to privacy. In the R. Rajagopal Vs State of Tamil Nadu case, the SC obser­ved, “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’.”

Although the Constitution makes no explicit case for it, the right to privacy is increasingly acquiring a constitutional character and the judiciary has showed greater sensitivity towards it. The Nati­onal Judicial Review Commission had recommended making privacy a fundamental right, while the previous government that shaped the Aadhaar project also established a commission chaired by Justice A.P. Shah in 2012 to suggest a framework for a privacy legislation.

As advocates of privacy began to cite the widespread use of Aadhaar as capable of breaching privacy, the central government began changing its stance, arguing that privacy could not be a fundamental right. According to Prassana S., a lawyer who has appeared for petitioners challenging Aadhaar, this stood in contrast with the government’s simultaneous arguments in another case where it sought to protect the provisions of criminal defamation (Section 499 of the Indian Penal Code) on grounds of there being a right to privacy.

The purpose of Aadhaar is to improve a citizen’s accessibility of government services. The Unique Identity Authority of India says its “mandate is to issue every resident a unique identification number linked to the resident’s demographic and biometric information, which they can use to identify themselves anywhere in India, and to access a host of benefits and services.” Yet, biometric information isn’t just any other inf­ormation. It is made of an individual’s physical body traits. The world over, the concerns are similar. It’s not only about what the state knows, but how it intends to use what it knows and for what.  

Some of the concerns could be settled outside the court through legislative decisions. Take for instance, the recent decision of the ministry of electronics and information technology to appoint a panel led by a former judge of the SC to draft a data-protection law. This is clea­rly a prerequisite, although it has come as an afterthought.