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by R Jagannathan  Jul 23, 2015 11:15 IST


The government’s chief lawyer, Attorney General Mukul Rohatgi, threw a googly at the Supreme Court when the validity of the Aadhaar unique ID project was being challenged by various petitioners. At hearings yesterday (22 July), Rohatgi told a three-judge bench headed by Justice J Chelameswar that there was no fundamental right to privacy and cited a judgement by an eight-judge bench dating to 1954 to back his contention.

It’s true, the constitution does not mention the right to privacy anywhere, and even fundamental rights – to free speech, life, movement, religion, etc – are subject to reasonable limits. The question of the right to privacy is thus likely to come much lower down in the pecking order.

Till recently, the right to privacy has been assumed to exist as an adjunct to the other fundamental rights, but now that Rohatgi has set the cat among the pigeons by pointing to a past judgment, the Supreme Court will have to grapple with this issue first. The problem is simple: while an eight-judge bench said privacy was not a fundamental right, other, smaller benches, have maintained otherwise. This shows that Supreme Court benches themselves can come to contradictory decisions. Even now, another bench is looking at Ratan Tata’s petition on the right to privacy in the Niira Radia tapes scandal, where sensitive conversations damaging to Tata (among others) were leaked to the media.
Aadhaar numbers have hit close to 800 million and almost the whole of India could get covered in a few months’ time after Narendra Modi‘s directive to the Unique Identification Authority of India (UIDAI) to get a move on in this regard. The deadline was one billion Aadhaar numbers by June, but the target has been missed for various reasons. Rohatgi’s googly may be intended to give the government more time to complete the process while the Supreme Court decides the privacy issueThe privacy issue has become central to the debate over the legality of Aadhaar, where the government is busy collecting biometric data from residents (and not necessarily citizens) and – at some point – could use the data for ill-defined ends, including law enforcement and tracking of criminals.

The Supreme Court’s delayed hearings in Aadhaar imply that by the time it gets the case decided, it will be presented with a fait accompli. Even if it finally decides that Aadhaar is illegal and violates the right to privacy, it will be faced with the painful choice of asking the government to abandon something that has already been accomplished, or restricting it to optional use. Even then it will have to decide whether the data already collected has to be canned or destroyed or can still be used with restrictions.

The issue of privacy is central to Aadhaar for three reasons;

First, the centre is collecting personal biometric data of individuals without any law backing it. The UPA pushed the scheme without legislation, and the Modi government continues along the same extra legal path.

Second, UIDAI used many private parties to enroll and collect biometrics from people. There can be no guarantee that the some of the collected biometric data will not remain in private hands, leading to the possibility of misuse.

Third, even assuming Aadhaar is vital for identifying beneficiaries for welfare payments, there is no law guaranteeing that the data already with government will not be used for unintended purposes (for example, snooping on citizens) or that there will be foolproof safeguards to prevent leakage of data to unauthorised hands.

If privacy is not a fundamental right, the scope for misuse of Aadhaar data – by government or private interests – can be immense. If government is not going to be held accountable for the data it collects from citizens, it has no right to make this card all but compulsory through executive fiat.

To be sure, Aadhaar has progressed too quickly and too deeply to be fully junked. Wasting the effort would be a pity, given that it is now a primary proof of identity and more authentic than ration cards, property documents, or Pan cards.

Even as the Supreme court ponders over the possibility of deciding whether or not privacy is a fundamental right – which could take another year – it ought to set two simple conditions for Aadhaar to remain legally valid: government must make a law for the collection of biometrics, and the law must specify the purposes for which Aadhaar data can be used and where it can never be used. It must also guarantee the privacy of the data and prescribe strong punishments for those responsible for leaking it. Compensation must be mandated for those who are compromised by this leakage.

Regardless of whether privacy is a fundamental right or something lesser, it cannot be compromised by mere executive fiat. The Supreme Court has the option of bolting the door before all the Aadhaar horses have bolted.