AADHAAR and its biometric features are at the centre of a raging controversy with the issue being looked into by the Supreme Court. The SC on 9th July created a 9 member panel headed by Justice Khehar to look into the possibility of the Right to Privacy being granted a Fundamental Rights status.
This came after several petitioners moved the court that the 12 digit Aadhaar card which also contains fingerprint and iris scans infringed on their privacy and raised serious security concerns regarding the breach of privacy. The petitioners had completed their argument in the apex court on July 20.
Currently the Central Government has been claiming and operating under the premise that the Right to Privacy is merely a common law right and not a fundamental right.
However, on 26th July, the Centre represented by Attorney General KK Venugopal conceded in the SC that there is a fundamental right to privacy but that it is wholly qualified. A wholly qualified right is one where government interference is allowed in special circumstances, and only when necessary in a democratic society, as opposed to an absolute right, which cannot be limited, reduced or amended in any way.
According to Advocate Gopal Subramaniam who is representing the petitioners opposing the Centre in the SC, privacy is enshrined in the spirit of the constitution even if not mentioned explicitly. Article 19 contains the basic Fundamental Rights but Article 21 -Protection of Life and Personal Liberty- is a residuary right and privacy is embedded in all processes of human life and liberty.
These two views may seem partially concurrent; however, the crux of the matter lies in the ability of the State being able to use this private information of citizens for public purposes. It cannot be denied that the use of biometrics will massively aid the delivery of services and subsidies to citizens. In fact this is the reasoning of the Centre in making the Aadhaar mandatory for many of its services in spite of the SC formerly ruling that Aadhaar is to be voluntary on the part of citizens. Tax payment and subsidy delivery, not to mention voter tracking can be made pinpointed and help in weeding out corruption in the system.
On the other hand, the fears of an Orwellian government in which the right to dignity is at stake cannot be entirely discounted either. Moreover, in the post Snowden and Wikileaks era, it has been seen that the security of governmental databases is constantly at risk, not only from malevolent outsiders but also corrupt insiders. If the security of the Aadhaar database is breached, it could lead to huge problems for individuals whose sensitive information can be used for any number of evil purposes.
Worldwide, the idea of biometric surveillance of citizens has faced huge resistance. In the US, the REALID Act of 2005 was mooted but due to intense backlash from states fearing security breaches and difficulties in implementation the idea died a slow death. The US currently only collects biometric information from its citizens who apply for a passport.
Even in highly socialist Sweden, the state does collect private data as per the Data Protection Act of 1988, but it has put in a very robust legal enforcement system that apart from providing guidelines for the collection of information also provides for imprisonment and fines between 6 months to 2 years for any individual found to have leaked private information to any outside country or individual.
In the early 2000s, the Chinese Ministry of Public Security started building a searchable, national DNA database as part of a larger police information project known as the Golden Shield. This system is currently only used to collect the DNA of suspected criminals. By 2015, more than 44 million entries are said to have been recorded. Ordinary citizens are exempted from this drive. China however lacks proper legal protection for this data and there is a huge fear of abuse of this information by authorities.
India has put in place a very robust data collection system and currently has the largest citizen database in the world. However, the law despite providing for adequate safeguards and punishments for data breaches finds itself lacking in implementation on the ground. Especially the clause about letting private companies use the biometric information stored in its databases is liable to be abused miserably. In my opinion, it is only a matter of time before India sees a scandal regarding the data breach of Aadhaar.
Regarding the case in the SC, there are two possible avenues in front of the Supreme Court. It could ask Parliament to include the right to privacy as a Fundamental right in Article 19. This would strike a body blow to the current state of Aadhaar and data collection and invite more litigation on the matter. The other way would be for the SC to reject Privacy as a fundamental right but instead insist that the Government provide for more safeguards within the existing system. Considering the fact that the two earlier benches, an eight-judge bench in 1954 and a six-judge bench in 1962, of the SC said that Right to Privacy is not a fundamental right it is more than likely that the SC would go the latter route.
However, it is important to note that the issue of press freedom is not mentioned in the constitution either but the SC has on various occasions upheld the freedom of speech and the press. Moreover, smaller courts have held at various times that privacy is a fundamental right. The verdict of the SC is anxiously awaited by the citizens of the country as the issue of data protection, privacy and governmental intervention is a very pressing one in these modern, digital times.
(The author works for CapitalKhabar. The views expressed are personal)