The Supreme Court of India has once again demonstrated its role as the guardian of our liberty. Its decision last week to uphold the inalienable ‘Right to Privacy’ is a triumph of our democracy and its hallowed institutions.The nine judges decreed that privacy is a constitutionally-protected right that stems from the right to life and liberty guaranteed by Article 21 of the constitution, which is indivisible from the right to live with dignity.
But this remarkable judgment has raised question marks on the Government’s decision to make Aadhaar mandatory for various financial transactions, welfare schemes, PAN application, processing of tax returns, etc. A five-member bench of the Supreme Court will now evaluate and decide on the validity of Aadhaar Card from the perspective of privacy as a fundamental right.
This puts the Center in a tight spot. It will have to defend its scheme, Aadhaar, as rational. It will have to establish that it is essential to collect the biometric details of the citizens, and that they are well protected. Center will also have to defend various provisions of the Aadhaar Act that have been challenged. Data protection and not sharing it with third parties will continue to be the key points of debate.
Enacting right to privacy as a fundamental right is the easy part. Implementing the same would be the real challenge.
There are some serious privacy issues with Right to Privacy and Aadhar Card programme.
In February, UIDAI lodged criminal complaints against Axis Bank, Suvidha Infoserve and eMudhra for illegally storing and using Aadhaar data to impersonate people and carry out transactions. They conducted multiple transactions using the same fingerprint, which implied that organisations are illegally storing biometric data on their servers.
There is another potential threat. Biometrics allows for identification of citizens even when they don’t want to carryout the transaction(even during unconscious state). Smart cards which require pins, on the other hand, require the citizens’ conscious cooperation during the identification process. MS Dhoni’s Aadhaar number and the rest of the information were leaked when he went to register his Aadhaar. One of his fans posted everything on Twitter. Action was taken only after his wife, Sakshi, complained.
Wikileaks has revealed that foreign agencies, like CIA, can easily access the data collected through the Aadhaar Programme. It’s critical to streamline a process in which data collected through educational, financial and other institutions is protected and unnecessary entries are omitted. A strong data protection law and privacy laws should bring an accountable structure for the use and misuse of citizen data.
The apex court will have to clinically analyse every aspect. It has to do a balancing act.
Unlike western countries, Right to Privacy in India will have to undergo various tests and challenges to avoid being another “Dummy Law”. These challenges are not limited to legal and technological aspects alone, but ideological as well. The Modi Government will have to address a whole range of issues, including petitions filed against Aadhaar Card programme, Companies acquiring personal data, State suspending civil liberties, Section 377, and other state laws relating to conversion and food choices.
Fixing contradictions and ensuring successful implementation would require constant work. Though the Right to Privacy on paper looks alluring, it will take time to be practically effective.