Judicial Evolution of the Right to Privacy and the Aadhar conundrum by Harish Jayakumar, HNLU

The Industrial Revolution picked up steam at the turn of the 19th century and the world underwent a decisive change forever. Almost 200 years later, the world is similarly being transformed by the Technological Revolution. It has been instrumental in propelling us into the Information Age where the proliferation of knowledge has never been greater. However, while the benefits are numerous and immense in their scale, there are equally vital concerns ranging from privacy to data-protection to which a search for an effective solution is still ongoing. One needs to understand the significance of technology because the current and future notions of privacy hinges on how modern society shapes itself to this technological change. Our right to privacy is not the same definition that existed in the ancient era and is constantly evolving and adapting with the times. Previously, the notion of privacy was restricted to the idea of protecting one’s person and property from torts such as trespass[1]. Now, the right to privacy has evolved completely to encapsulate not just privacy in the physical state but also to privacy in the spiritual and intellectual state as well[2].

In India, defining the right to privacy and its extent is more complicated because the Indian Constitution does not guarantee a specific right to privacy. Though the Supreme Court in various judgements has affirmed indeed that a right to privacy is an inherent right and that it flows naturally from the Right to Life and Personal Liberty, it is still a matter of contention. This has created consternation because the right to privacy is an important and inalienable right inherent to every Indian citizen but this is being offset by the State’s need to balance its national security interests. Most recently, the debate around the right to privacy has arisen around the Aadhaar which is a unique 12-digit identity number exclusive to every Indian[3] which is issued by the central government agency known as the Unique Identification Authority of India (henceforth UIDAI). The purpose of the Aadhaar is akin to what the role is of the social security number in the United States. It qualifies as a valid ID for availing various important government services and to receive government subsidies.

The controversy around Aadhaar is because the UIDAI collects the biometric and demographic data of the residents and stores this in a centralized database. This poses a serious risk to the right to privacy of each individual as it is now possible to categorize everyone in society by analyzing their biometric information. This is notwithstanding the fact that this information is in a centralized database which is a major security concern. The safeguards that have been introduced by the government in order to ostensibly protect the information of the citizens are also wholly inadequate and laughable by international standards. The implementation of the project has not taken place smoothly and has been ridden with a slew of controversies which raises questions regarding the efficacy of the government’s methods. The Aadhaar has been introduced by the government to provide many of their most important services and subsidies through the Public Distribution System (PDS). It is directly transferred to the lower strata of society in order to eliminate the middlemen and the constant leakages that plague the system. Also as of May 2016, almost 101 crore Aadhaar cards have been issued and 97% of adults possess an Aadhaar card[4]. So, it is clear that the project is on its way to its completion. Therefore, there are two very important questions that arise from this. Firstly, is the right to privacy a fundamental right guaranteed under the Constitution and is the UIDAI or Aadhaar in violation of an individual’s right to privacy?

 

The Supreme Court’s stance

 

The evolution of the Right to Privacy did not start out positively in India. The first case before the court which addressed the Right to Privacy was in M.P. Sharma & Others vs. Satish Chandra, District Magistrate of Delhi & Others[5]. The case considered whether there were any constitutional limitations to the government’s search and seizure of people’s homes. Here, the headnote reads, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a different fundamental right by some process of strained construction.” The American Fourth Amendment states that it is the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[6] An important point to be noted is that this does not pertain to the entire right to privacy. It only deals with a part of it, namely the protection of people against search and seizure. Following this is Kharak Singh vs State of Uttar Pradesh[7] which dealt with the physical surveillance of ‘history sheeters’. In this case also, the right to privacy was not recognized. The judgement begins stating that “as already pointed out, the right to privacy is not a guaranteed right under our constitution.”[8] Though, the saving grace here is “as already pointed out” which refers to an earlier section of the judgement where the Court quotes the US Fourth Amendment, and then declares that the Constitution does not confer any ‘like constitutional guarantee’[9] following the ratio of the M.P. Sharma Case. It is clear that both these cases don’t refer to right to privacy as a whole. The Attorney General, Mr. Mukul Rohatgi provoked a huge controversy when he stated in the Supreme Court that Right to Privacy is not a right provided by the Constitution while defending the claim that the Aadhaar violated the Right to Privacy on the basis of these 2 cases[10]. This was a technical error on the Attorney General’s part as both of these cases deal with the question of whether the US Fourth Amendment can be read into the Indian Constitution and not about the whole right to privacy. The 2 cases discussed above don’t rule out a broad constitutional right to privacy as the right to privacy is a bundle of rights not limited to only surveillance or search and seizure. Also, in the minority judgement of the Kharak Singh case, Justice Subba Rao recognized the need for a right to privacy under Article 21 and set the foreground for shaping the right to privacy under Article 21.

In subsequent years, small bench judges expanded the position of the right to privacy. In Govind vs State of Madhya Pradesh[11] which also dealt with the surveillance of ‘history sheeters’, the Court held that the surveillance by various means is not violative of Article 21 of the Constitution as it was a regulation according to “procedure established by law.”[12] However, it recognized the right to privacy in a limited context and allowed that it should be developed on a case-by-case basis. The true break for the Right to Privacy came with the celebrated Maneka Gandhi[13] case which greatly expanded the ambit of Article 21. In the judgement, Justice Bhagwati observed, “The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.” Thus, the Court had held Article 21 to be controlled by Article 19 binding the two important rights together. This also meant that the ambit of right to privacy had greatly increased and could now be interpreted in a much more liberal manner. So, following this in R. Rajagopal vs State of Tamil Nadu[14]  the apex court 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. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.[15]” Therefore, these final cases represented a decisive shift in the court’s ratio towards the right to privacy. Previously, the court took a cautious stance and interpreted the law in a positive manner following the text of the Constitution. With the liberalization of the country during the early 90s, the Court also followed suit as observed in R. Rajagopal and took favorable interpretations of the right to privacy.

The Evolution of the Aadhaar Project

The need for issuing every citizen an identity card and number had started during the Vajpayee years itself. It was then taken up the subsequent UPA government which established the UIDAI as an attached office of the Planning Commission in 2009. As stated above, the purpose of the Aadhaar is to issue a unique 12-digit number to all residents of India in the form of the Aadhaar card which will serve as the primary proof of identity anywhere across India. This card would contain their biographic and demographic information such as photograph, ten fingerprints and two iris scans which would then be stored in a centralized database[16]. In the beginning, the Aadhaar was created in order to weed out illegal aliens but this has changed to focus it as a development initiative[17]. In its current form, Aadhaar is part of the government’s flagship JAM Trinity (Jan Dhan, Aadhaar and Mobile Banking) by which the government seeks to provide its services to the people using these as the medium in a more efficient, effective and economical way. Aadhaar is the lynchpin of this program and some of the government programs which can be availed using the Aadhaar card include procuring an LPG connection, subsidized rations from the PDS, and benefits under NSAP pension schemes, obtaining a SIM card or opening a bank account[18]. The importance of the Aadhaar is therefore clear and India needs such an identity card so that the beneficial schemes that the government implement reaches those that need it the most.

Troubling Concerns

The Aadhaar has gone through a slew of controversies since its inception and this has raised many vital concerns. Until March 2016, the Aadhaar did not even have legislative backing and the entire project continued to run only on the basis of an executive order[19]. It was only on March 11, 2016 that the Parliament passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, benefits and services) Act, 2016. Even this was not without controversy as the Bill was introduced as a money bill in order to bypass the Rajya Sabha where the ruling government did not have a majority.

Another controversy is the so-called “voluntary” nature of the Aadhaar card. In March 2014, the Supreme Court passed an interim order declaring that the Aadhaar is not mandatory and no one should be forced to use it to avail government services[20]. However, the government fosters the illusion that an Aadhaar is absolutely necessary and one must register their bank accounts with their Aadhaar number in order to avail its various facilities. Indeed, it was only after the Supreme Court passed its orders declaring that no one should be denied services for want of an Aadhaar that the government made statements stating that it was voluntary[21]. In fact, some of the government’s most important schemes such as Jan Dhan Yojana, Ration Card & LPG Subsidy and Mobile Numbers don’t even require the use of an Aadhaar. Therefore, it begs the question as to why the government is so focused on promoting it as a mandatory requirement and it raises concerns about their need to profile the citizens.

This leads us to the most important issue regarding Aadhaar which is privacy or the lack of it in the entire Aadhaar project. The main danger is that it opens the door to mass surveillance because Most of the “Aadhaar-enabled” databases will be accessible to the government[22]. This brings to mind the Snowden leaks in 2013 which revealed that the US government was extensively spying on its own citizens in the guise of “protecting national interests”. Another important concern that has been raised is the method and process of data collection. The UIDAI has enlisted the services of several private subcontractors in order to collect the data which greatly increases the possibility of leakages of data occurring[23]. They are also not responsible to Indian law for data collation and this greatly exacerbates the threat to the right to privacy. Lastly, there is the use of the centralized database which keeps the record of all the biometric and demographic information of each citizen. This has been a great concern because of 2 reasons. Firstly, the data is in the hands of the government which can then use it in order to categorize the people in society. Also, there is the possibility that data leaks may arise from this centralized database because there is as yet, no foolproof system in place to guard against breach of data from the private players despite the UIDAI’s claims that it has robust security measures in place[24].

The UIDAI had an opportunity to implement the Aadhaar for the noble purpose of setting up an effective Public Distribution System and also a pan-India identity card for any transaction throughout the length and breadth of the country. While this has ostensibly been done in some respects, it has also come at a great cost. The government has in the background created a big-brother like situation where they are poised to misuse this data for mass surveillance and profile the citizens in the country. In the world’s largest democracy, such a fundamental violation of a natural right is deeply regrettable.

Conclusion

 

Let us be clear that an absolute right to privacy is impossible in this day and age. It is a fact that somehow, somewhere, we are bound to be identified and categorized in some respect. With technology pervading and becoming an intrinsic part of our lives, it is not possible to truly enjoy a complete right to privacy. However, this does not mean that the right to privacy should be made inviolable to allow mass surveillance by a government. There are still certain fundamental tenets about the right to privacy that must be respected and protected at all costs. Therefore, this presents a new question to the social contract: Does a citizen forsake one’s right to privacy in order to safeguard national security interests? The answer is undoubtedly no because this is a right that is an essential constituent of personal liberty and also to enjoy a free and fruitful life. The Supreme Court is currently deliberating over whether the Right to Privacy constitutes a fundamental right and one only hopes that they declare a positive affirmation firmly entrenching it so. This is important because going forward technology is going to play an even more important role in lives of people. Therefore, stringent declarations protecting the rights of people in case of data protection and privacy violations will become all the more important. By setting a precedent right now, it will help the future generations to expand upon the doctrine. Laying ironclad precedents also sends a message to the government to not tamper with the rights of citizens from the start and conduct their policies respecting these principles. It also ensures that projects such as Aadhaar which are in danger of grossly violating an individual’s right to privacy are never again conducted in the manner that they have been. The Aadhaar is currently poised to be one of the government’s most successful initiatives considering the amount the government has saved plugging leakages in the PDS and directly helping the people who are below poverty line. However, the government is the caretaker of the people and they should be providing the best possible safeguards if they are undertaking any measure that may compromise on an individual’s right. It is regrettable that the same cannot be said of the Aadhaar which stands as a threat to the right to privacy of every citizen. So, it is up to the people to put pressure on the courts and the Parliament alike so that they can take cognizance of the needs of the people and the need of the law to adapt to changing times and their responsibility to ensure that it happens in the free and democratic tradition that this country was founded upon.

 

[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4(5) HARVARD LAW REVIEW 193, 193 (1890).

[2] Hinailiyas, Right to Privacy under Article 21 and the Related Conflicts (January 22, 2014), LEGAL SERVICES INDIA, available at http://www.legalservicesindia.com/article/article/right-to-privacy-under-article-21-and-the-related-conflicts-1630-1.html (Last visited on June 2, 2016).

[3] V Nalinakanthi, All you wanted to know about the Aadhaar Bill, THE HINDU BUSINESS LINE (March 21, 2016), available at http://www.thehindubusinessline.com/opinion/columns/all-you-wanted-to-know-about-aadhaar-bill/article8381808.ece (Last visited on June 9, 2016).

[4] UIDAI (2009), Aadhaar Generation Progress in India, Aadhaar by Ages & Gender, and Aadhaar by Trend (Bar Graph) available at https://portal.uidai.gov.in/uidwebportal/dashboard.do (Last visited on April 30, 2016).

[5] M.P Sharma & Others v. Satish Chandra, District Magistrate of Delhi & Others, AIR  1954 SC 300 (Supreme Court of India).

[6] Amendment IV, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787.

[7] Kharak Singh vs State of UP, AIR 1963 SC 1295

[8] Id., at 13.

[9] Chinmayi Arun, A Basic Right is in Danger, THE HINDU (July 31, 2015), available at http://www.thehindu.com/opinion/op-ed/a-basic-right-is-in-danger/article7482874.ece (Last visited on June 9, 2016).

[10] PTI, Right to Privacy cannot be a Fundamental Right: Centre Tells Supreme Court, ECONOMIC TIMES (July 23, 2015), available at http://articles.economictimes.indiatimes.com/2015-07-23/news/64773078_1_fundamental-right-attorney-general-mukul-rohatgi-privacy (Last visited on June 7, 2016).

[11] Govind vs State of Madhya Pradesh, (1975) 2 SCC 148 (Supreme Court of India).

[12] Id., at Para 176.

[13] Maneka Gandhi vs Union of India, (1978) 2 SCR 621 (Supreme Court of India).

[14] R.Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632 (Supreme Court of India).

[15] Id., at 26.

[16] TNN, Learning with the times: What is Aadhaar?, THE TIMES OF INDIA (4th October  2010), available at: http://timesofindia.indiatimes.com/india/Learning-with-the-Times-What-is-Aadhaar/articleshow/6680601.cms (Last visited on June 9, 2016).

[17] Tusha Mittal, Falling between the barcodes, TEHELKA (20th August 2009), available at http://www.tehelka.com/2009/08/falling-between-the-barcodes/?singlepage=1 (Last visited on June 9, 2016).

[18] Seetha, There is a Privacy Issue with the Aadhaar Card, SWARAJAYA (July 29, 2015), available at  http://swarajyamag.com/politics/there-is-a-privacy-issue-with-the-aadhar-card (Last visited on June 9, 2016).

[19] Ruhi Tiwari, Aadhaar legal, valid under Constitution: Centre tells SC, THE INDIAN EXPRESS (February 12, 2015), available at http://indianexpress.com/article/india/india-others/aadhaar-legal-valid-under-constitution-centre-to-tell-sc/ (Last visited on June 9, 2016).

[20] Krishnadas Rajagopal, Don’t insist on Aadhaar, warns SC, THE HINDU (March 16, 2015), available at http://www.thehindu.com/news/national/aadhaar-not-mandatory-sc-reiterates/article6999924.ece (Last visited on June 9, 2016).

[21] Dhananjay Mahapatra, Aadhaar use will be voluntary, says government, THE TIMES OF INDIA (October 15, 2015), available at http://timesofindia.indiatimes.com/india/Aadhaar-use-will-be-voluntary-says-government/articleshow/49366557.cms (Last visited on June 9, 2016).

[22] Jean Dreze, The Aadhaar Coup THE HINDU (March 15, 2016), available at http://www.thehindu.com/opinion/lead/jean-dreze-on-aadhaar-mass-surveillance-data collection/article8352912.ece (Last visited on June 9, 2016).

[23] Rajeev Chandrasekhar, A Shaky Aadhaar INDIAN EXPRESS (October 1, 2015), available at http://indianexpress.com/article/opinion/columns/a-shaky-aadhaar/ (Last visited on June 9, 2016).

[24] Usha Ramanathan, Who Owns the UID Database? MONEYLIFE (April 30, 2013), available at http://www.moneylife.in/article/aadhaar-who-owns-the-uid-database-ndashpart-ii/32440.html (Last visited on June 9, 2016).

Aadhaar, As It Stands Today

by Joshita Pai

Despite formalizing a legislative structure for the ambitious Aadhaar project, several grave concerns surrounding the project remain unresolved. The recent passage of the Aadhaar Bill in the Lok Sabha, which rejected crucial amendments proposed by the Rajya Sabha, displays an utter disregard to the plea of balancing social welfare schemes with protection of several other rights.

Continue reading Aadhaar, As It Stands Today