The task before the sentinel: privacy challenges to Aadhaar

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It is time the Chief Justice of India set up the larger Bench to examine privacy challenges to Aadhaar

The expansion of Aadhaar continues. The effort is now emboldened by a Supreme Court judgment that has stuck a band-aid on a gaping wound, which required stitches if not surgery. Individual holdouts against Aadhaar have been recognised and grudgingly protected by the judgment. There is, however, no broad declaration against an overpowering state’s propensity to stretch out to every sphere to compel individual surrender of little remnants of liberty. The architecture of enforced surveillance has been left intact.

As good as its use

Aadhaar is a classic case of technology being amoral. The splitting of the atom gave us nuclear energy. It also gave us weapons with the capacity to destroy civilisation. Similarly, the Unique Identification Authority of India (UIDAI) began only with the mandate to confirm a citizen’s unique identity. A stand-alone authority, with biometric information and fingerprints, which could, in cases of doubt, identify with certainty any claimant of government subsidies or special services. Aadhaar’s claim was to weed out duplicates and forgeries, thus ensuring targeted distribution by administrations.

Aadhaar’s sole purpose was as a benign guarantor of identity in cases of doubt. Any attempt by government departments to overreach this mandate was resisted by the authority. In fact, when a court ordered access to the database for a police investigation in a criminal matter, the Aadhaar authority challenged the order in the Supreme Court.

However, the UIDAI database has today ceased to be only a neutral identifier of a person’s identity. In the Information Age, where data is the new oil, the temptation to maximise the use of an all-encompassing database is simply too strong. More and more service providers sought linkages to the data and the government ramped up the number of government and other organisations that could insist on an Aadhaar-based identity alone as a sine qua non for dealing with the user. Shortly after the Supreme Court’s recent judgment of June 9, 2017, the government publicised a prior notification of June 1, 2017, under the Prevention of Money Laundering Act (PMLA). The notification makes it mandatory for bank account holders to produce an Aadhaar number.

The government has also deliberately misconstrued an earlier Supreme Court order in order to pressurise telecom operators to make Aadhaar a requirement for all mobile phone users. Even education and health services have been used to broaden the Aadhaar net and draw in more people into the dragnet. Schools insist on newly admitted children having Aadhaar numbers, which are not given until the parents too submit to Aadhaar registration.

There are reports that the Civil Aviation Ministry wants to make Aadhaar identification mandatory for access to commercial flights. The government has decided to make the cost of holding out unbearable to the non-compliant and present courts with a fait accompli.

Fundamental freedoms of the individual are being routinely sacrificed at the altar of administrative expediency and the forced sacrifice is justified as being necessary for the greater common good. Not since the forced sterilisations during the Emergency has a government been so invested in an administrative goal that it has abandoned the requirement to seek “the consent of the governed”. A key to access government services has turned into a prison lock of individual liberties. An all-powerful state seems today to seek “One Ring to rule them all, One Ring to find them, One Ring to bring them all, and in the darkness bind them”.

Everyone is affected

How then is this darkness to be dispelled? How are the Lords of the Rings to be brought back to democratic governance? The processes have to be both political and legal. The Mahatma as a leader was born in 1907 when an Indian barrister in Transvaal refused to register himself as a lesser inhabitant of South Africa. It is time for all political parties, including the Bharatiya Janata Party, to take a relook at the extent of control that Aadhaar gives to governments against the citizen. Today’s government is tomorrow’s opposition, and vice versa. Every party must seriously ponder the possibility that its worst opponents may one day use this technology against it.

The Congress, which fathered the scheme, is now coming to the slow realisation of the surveillance possibilities that it has handed over to its successor. Sitaram Yechury of the Communist Party of India (Marxist) has also raised concerns during the parliamentary debates held after the Aadhaar legislation was rushed through as a money bill. A sustained parliamentary inquiry committee, spanning various ministries, should be used to rein in the system’s worst excesses. Every new administrative measure designed to be Aadhaar-reliant should seek prior approval from this parliamentary committee.

It has been almost 700 days since the Supreme Court on August 11, 2015, referred the privacy challenges to Aadhaar to a larger Bench of possibly nine judges. The court needs to rule on whether the right to privacy is an established part of the fundamental right to life and liberty in this country. This is because, at a hearing before three judges, Attorney General Mukul Rohatgi had contended that because of judgments of the “Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295 (decided by Eight and Six Judges, respectively), the legal position regarding the existence of the fundamental right to privacy is doubtful.” He therefore contended that the “right to privacy” deemed to be accepted by subsequent smaller Benches “resulted in a jurisprudentially impermissible divergence of judicial opinions”.

The court further records its “opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches”.

The nine judges

Getting together nine judges to hear at length a constitutional matter of these proportions is an administrative nightmare for any Chief Justice. But failure to do so in time permits the state to set up an architecture of surveillance that cannot be undone later.

Chief Justice Patanjali Sastri in the early years of the Supreme Court had written: “If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the ‘Fundamental rights’, as to which this Court has been assigned the role of a sentinel on the ‘qui vive’. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.”

If the sentinel deserts duty and the citizens rights die uncherished, the Republic too cannot long endure.

Sanjay Hegde is a senior advocate of the Supreme Court