Fundamental Right For Digital Indians

My criticism of Aadhaar isn’t new. The biometric ID system has a flawed design and verification procedures are weak, I had noticed way back in 2010. Aadhaar during the UPA-2 days involved thousands of crores of rupees (public money) being spent on a project that had no discourse or legislative sanction. This deliberate lack of debate and scrutiny has led us today to a situation where a huge database constructed clumsily has no reciprocal legal protections for those enrolled into Aadhaar and had volunteered data into it.

I have been a long-standing advocate of ensuring rights to digital consumers and have made repeated efforts to realise these rights through my several interventions in Parliament and as well as outside it. When faced with an unresponsive Manmohan Singh government, I approached the court with PILs and successfully fought to revoke the draconian Section 66A of the IT Act to protect digital freedom of expression and voting rights for armed forces. In March 2014, when I moved the SC, the aim was to highlight the involvement of a violation of the citizens’ fundamental rights while imp­lementing the UID/Aadhaar.

The issue of Right to Privacy has finally reached the apex court’s nine-judge constitutional bench after a three-and-a-quarter-year journey through Parliament and courts on the back of sustained debate on Aadhaar. Legal rights for consumers and citizens are a critical issue. While Aadhaar and its desi­gners kept reiterating glibly that the system “is designed for privacy”, the civil society has begun to call the bluff.

Here is how my legal efforts have progressed so far over the time:

• March 11, 2014: Filed an impleadment application in the SC, highlighting the violations of the Fundamental Rights of the Citizens due to the implementation of Aadhaar.

• March 14, 2014: The court issues an order asking agencies to revoke any order making Aadhaar mandatory for availing benefits, and forbade the Unique Identification Authority of India (UIDAI) from sharing any information in the Aadhaar database with any agency without the subject’s consent

• August 11, 2015: A three-judge SC bench refers the challenges to the Aadhaar programme arising on the issue of violation of privacy to a Constitutional Bench, with a mandate to determine the existence of right to privacy as fundamental.

• October 15, 2015: A five-judge bench headed by the chief justice, while limiting the use of Aadhaar for the delivery of select government subsidies, also referred the question of privacy as a fundamental right to a larger Constitutional Bench.

• July 19, 2017: A five-judge bench specially constituted for hearing the petitions challenging the constitutional validity of Aadhaar refers the limited question—of whether right to privacy is fundamental—for the consideration of a nine-judge bench.

Of course, there are many views on privacy. To mention a couple of them, there are the purists who believe the state has no right to seek any information from an individual. On the other extreme, many believe the state shouldn’t have any fetters on seeking and using individual data and information.

I subscribe to neither. My belief goes thus: a) Privacy is a fundamental right under Article 21; it is subject to reasonable restrictions, and so not absolute, (b) So, state-­authorised entities have the right to seek information and data from individual citizens for the stated cause. Correspondingly, citizens have an obligation to provide such data. (c) Those state entities that collect, store and manage the above-mentioned voluntee­red data must have legal and constitutionally embedded obligation of using that data only for the purpose specified. (d) Such a fundamental right to privacy also means that if the custodian of the user data (private/state) misuses/leaks/fails to protect the data, it will be legally liable and be in contravention of this fundamental right to privacy.

The verdict of the Constitution Bench will have far-reaching implications on shaping the rights/protection of the citizen/individual and balanced development of Digital India. I am hopeful the SC will uphold my contention on privacy being a fundamental right.

(The writer is a Rajya Sabha MP & vice-chairman of the NDA’s Kerala unit.)