Need for balance between State’s actions and citizen’s right: Supreme Court argues for Aadhaar

New Delhi: There is a need to strike a balance between individual’s privacy rights and the State’s responsibilities at a time when the nation faces threats of terrorism and money laundering and to keep a tab on welfare expenditure, the Supreme Court said on Wednesday.

Its observation came after a senior lawyer, who has challenged the validity of the Aadhaar programme and its enabling Act of 2016, said the Constitution does not allow a surveillance State. Yet, it is technically possible now to track every transaction, profile individuals or even “compromise constitutional functionaries”.

The five-judge constitution bench headed by Chief Justice Dipak Misra, however, said no system in the world was secure and the issue was not as to how data is collected, but how the information thus collected is used or misused. “We live in times of terrorism and money laundering and welfare expenditure (of the state), and this has to be balanced (with individual rights),” the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said.

Senior lawyer Shyam Divan, who is representing the petitioners,   highlighted the fact that Aadhaar and its enabling law would lead to “real time surveillance” of citizens. “Data collected over an individual’s lifetime can become a tool of political blackmail. This can compromise even constitutional functionaries,” Divan said.

The Bench asked as to what extent the court can go into aspects of “technical evidence”, as there was a distinction between the existence of a mechanism and its abuse. The court further asked whether it can scrutinise the decision of the government, especially when it was established that no system in the world is “secure”. “Aren’t we accepting Google Maps tracking us and other private corporations,” the Bench asked.

“When you are tracked by the State in real time, it tantamount to a police State. The Constitution does not allow this. Google is not the Indian State, and the issue is one of consent also”, Divan replied, adding that though Google is powerful it is not as “powerful as the State”.

At the outset, Divan referred to provisions of the Aadhaar Act and submitted that they are unconstitutional as they allowed private enrolment agencies to collect details and such entities were not covered by law. By enabling private agencies, the citizens’ right to “informational privacy” has been infringed, he said, adding it would lead to a situation where an individual cannot hold a bank account, mutual fund and mobile number; hence it would violate “autonomy and dignity” of an individual.

In a digital society, every individual has the right to protect his or her personal information, Divan said, adding that it helped the State to profile its citizens. The scheme violates the principle of “less governance” and rather turns the State into a “totalitarian” one.     If the government disables the Aadhaar account of an individual then it would lead to his civil death.

Senior lawyer Kapil Sibal, too, argued that “big brother is constantly watching us… Why should the big brother have data? He may use it?” He also countered the suggestions that people could take remedial measures. “By the time, individuals come to court, years will pass and big brother will become bigger,” he reasoned. The apex court had on December 15 last year extended till March 31 the deadline for mandatory linking of Aadhaar with various services and welfare schemes.

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