Privacy and Aadhaar: Linked yet divorced

Privacy and Aadhaar: Linked yet divorced

Olav AlbuquerqueUpdated: Thursday, May 30, 2019, 04:56 AM IST
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There is no doubt that the right to privacy, which is the opposite of the right to information, cannot be absolute. But to what extent does the BJP government in India have the right to scan private data and regulate it when an individual wants to keep it secret, is what the Supreme Court will have to pronounce.

The apex court has split the challenge to the Aadhaar card scheme and the question as to whether the right to privacy is a fundamental right or not into two issues although both are inextricably linked because Section 139AA was brought in surreptitiously by amending the Income-Tax Act through the Finance Bill, 2017. This makes the submission of Aadhaar, the 12-digit UID number for resident Indian citizens, compulsory to file income-tax returns and to obtain and retain their Permanent Account Numbers. Not having an Aadhaar becomes a criminal offence for law-abiding citizens.

The nine-judge bench headed by Chief Justice of India (CJI) J.S. Khehar has an unenviable task before it given that the BJP government’s attorney general Mukul Rohatgi had controversially declared that the right to privacy was not a fundamental right. He also informed the apex court on May 2  that citizens do not have an absolute right over their body which are both sinister assertions indicative of future government policies as biometrics are stored in the Aadhaar card.

Rohatgi called the Aadhaar card an “effective tool” to curb terror and black money which effectively means every law-abiding citizen is expected to divulge his private biometric data to the state in exchange for security which is sinister in view of the fact that there was a leakage of 130 million citizens’ Aadhaar data from just four government websites, according to the Centre for Internet and Society, a Bangalore-based research group. This same group revealed that 100 million bank account numbers were also leaked.

The bench which will decide  the right to privacy is a fundamental right seems to have veered towards the old view that the right to privacy is a species of  personal liberty contained within Article 21 of the Constitution which lays down that nobody can be deprived of life or liberty except by following the procedure laid down by law.

Article 21 has been declared by the apex court in the past to be the heart of all fundamental rights because the word “life” does not mean a mere animal existence but the right to develop one’s mind and soul through silence or the right to be left to oneself. This right will include the right not to divulge details of citizens’ bank accounts by linking all bank accounts through an Aadhaar card which is why some of the petitioners before the apex court have challenged the Aadhaar card scheme.

By making the Aadhaar  card compulsory to file income-tax returns and linking it to the PAN card and citizens’ bank accounts, it is easy for the income-tax department to scan private details such as the bank balance maintained, spending patterns and remittances from offspring abroad which are strictly personal information. Just as your biometrics are strictly private and need not be disclosed to the state unless a person has been convicted of a crime or is a history-sheeter.

The right to privacy also includes the right to keep secret what religion one professes, whether one eats beef, pork or vegetables at home, sexual orientation, pregnancy, income, whether a citizen has been jailed in the distant past for a criminal offence, or even if one visits casinos or  racecourses. But dignitaries like  governors of states, judges, ministers or those who thrust themselves into controversies, cannot claim privacy when their intimate details are telecast.

Bigwigs like Prime Minister Narendra Modi cannot claim invasion of privacy if newsmen reveal that his estranged wife Jashodaben gets a monthly government pension of Rs 14,000 per month or that former Andhra Pradesh Governor N.D.Tiwari was 89 when he married his sweetheart Ujjwala Tiwari after first begetting an illegitimate son from her. These public figures have to accept their private lives are open to scrutiny just as the Aadhaar cards of 1.5 billion Indians will reveal their biometrics.

By setting up a constitutional bench whose composition was announced last week, the apex court has assured Indians that a decision whether the right to privacy is a fundamental right or not will soon be delivered. It is unlikely that the nine- judge bench will hold that the right to privacy is not a fundamental right. It is more likely that the apex court will reiterate that this right to privacy is not absolute with state security overriding the citizens’ right to privacy.

The apex court will now have to delineate the contours of the right to privacy which was recognized as a species of personal liberty in Kharak Singh versus State of U.P. in 1960 and reiterated a few years later in Govind versus State of M.P. In the 1978 decision of Maneka Gandhi versus Union of India, the apex court laid down that any law which invades personal liberty equated with privacy must not be arbitrary. The boundaries of arbitrariness will now be delineated by the apex court which will determine our future.

The author holds a PhD in Media Law. He is a journalist-cum- lawyer of the Bombay High Court.

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