SC verdict on Right To Privacy is huge win for citizens but it's premature to write Aadhaar's obituary
After SC verdict on Right to Privacy, it is unwise to write the obituary of government schemes like Aadhaar that are based on biometric identity data.
Supreme Court's decision to hold Right to Privacy as a Fundamental Right under Chapter Three of the Indian Constitution and as an integral part of Right to Life and Personal Liberty guaranteed under Article 21 is a landmark judgment that has far-reaching implications for the future of India as a liberal democracy. It is also expected to mould the evolution of laws and rights around privacy in ways that we are currently in no position to foresee.
That said, it is premature and unwise to write the obituary of government schemes like Aadhaar that are based on biometric identity data. Premature, because the legality or validity of the Aadhaar Act wasn't even an issue of adjudication before the nine-judge Constitutional Bench. The judges were considering the expansive question of whether privacy is indeed a Fundamental Right.
This was important because the Centre had cited as precedents previous Supreme Court judgments — MP Sharma vs Satish Chandra in 1954 and Kharak Singh vs State of Uttar Pradesh in 1962 — to argue that Right To Privacy can't be held as a Fundamental Right because it is not inviolable and too amorphous.
Arguing before the apex court, attorney general KK Venugopal had said: "Privacy is not a single, homogenous right but rather a bunch of rights spread over the Constitution. The right to privacy is a sub-species of the fundamental right to personal liberty and consists of diverse aspects… An elite few cannot claim that their bodily integrity would be violated by a scheme which serves to bring home basic human rights and social justice to millions of poor households across the country."
It was argued that Chapter Three of the Indian Constitution that lists the provisions of Fundamental Rights has no mention of Right to Privacy. In light of these previous judgments and also the fact that these were arrived at by smaller benches, it became necessary for a larger Constitutional bench to decide once and for all whether privacy can be deemed as intrinsic to Right to Life, and hence a Fundamental Right.
Now that privacy has been interpreted as a core provision of Article 21, the fate of Aadhaar will be decided when another five-judge Constitutional bench meets to deliberate on the Act. This is why obituaries on Aadhaar at this stage are also unwise because whether or not the scheme emerges unscathed will depend on its provisions passing the test of constitutionality in light of Thursday's judgement.
There is a hasty temptation on part of some commentators and analysts to read the verdict as an endorsement of 'absolute privacy'. This is an erroneous reading. Bear in mind that in delivering the unanimous judgment, the nine-judge Bench led by Chief Justice of India JS Khehar along with Justices RF Nariman, D Y Chandrachud, J Chelameswar, AM Sapre, RK Agrawal, SK Kaul, S Abdul Nazeer and SA Bobde placed privacy within the ambit of Chapter Three which lends Constitutional protection to privacy as a Fundamental Right in line with Right to Equality, Right to Freedom of Religion, Right to Freedom of Speech and Expression etc., and hence all forms of "reasonable restrictions" that these rights are subjected to will also be applicable to Right To Privacy.
The question, therefore, whether Aadhaar will be struck down as unconstitutional cannot be answered right now. It shall be decided on a case-to-case basis by defining Right to Privacy under "reasonable restrictions".
A part of Thursday's judgement under the title "Restrictions", reads: "The right to privacy as already observed is not absolute. The right to privacy as falling in part III of the Constitution may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, so would the provisos to different fundamental rights, dependent on where the right to privacy would arise. The Public interest element would be another aspect."
As we can see, it is impossible to argue that the government will be unsuccessful in showcasing Aadhaar as a 'public interest element' and fail to validate the scheme under "reasonable restrictions". It is also important not to conflate the mandatory nature of Aadhaar, or the Centre's move to seed other privacy data with the signature biometric ID, with poor or non-existent data protection laws.
The government is well within its rights to collect data, and Thursday's landmark verdict in no way restricts the State from doing so. What it essentially does is that it provides ordinary citizens with Constitutional protection for her/his data and makes it mandatory for government and/or private agencies in possession of the data not to misuse, or be careless with it. This is being touted as a landmark judgment precisely because it forces the state to be accountable to the individual while handling sensitive data, failing which the government could be dragged to the court. Obviously, these provisions also apply to private agencies who deal with big data.
This is being touted as a landmark judgment precisely because it forces the state to be accountable to the individual while handling sensitive data, failing which the government could be dragged to the court. Obviously, these provisions also apply to private agencies who deal with big data.
Thursday's judgment in no way favours the state's position that citizens have no right over their privacy but it also does not endorse the view of privacy evangelists that the state has no business in collecting data.
The citizens are duty-bound to provide the government with the data that is necessary to root out corruption and ensure that entitlements and benefits under welfare schemes reach the intended recipients. The government may also seed various data (linking of PAN) with Aadhaar to ensure that laws are not misused to evade taxes.
But equally, Thursday's verdict makes it clear that it is imperative on the state (or private agencies) to make the data secure and not use it for surveillance or commercial gains. As MP Rajeev Chandrasekhar, who is a petitioner in the privacy case, told Bloombergquint.com, "The judgment effectively creates for the first time, obligations and responsibilities, for all those companies or government organisations that deal with Indian citizens and their information. They have responsibilities to do this in a manner that is responsible and does not infringe on the privacy of the citizens."
It is naïve and misleading to interpret the verdict as a defeat for "fascist forces" or a "blow to Modi" as the Congress has tried to do.
SC decision marks a major blow to fascist forces.A sound rejection of the BJP's ideology of suppression through surveillance#RightToPrivacy
— Office of RG (@OfficeOfRG) August 24, 2017
The implications of the judgment go far beyond petty politicking. For instance, it will have a huge bearing on Section 377 because parts of the verdict clearly hold sexual preference as a matter of preference that has no concomitance with the majority opinion. A part of the judgment reads:
"That 'a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders' (as observed in the judgment of this Court) is not a sustainable basis to deny the Right to Privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular."
This is a landmark judgment in more ways than one and in decades to come may shape legislation on a plethora of issues related to civil liberty and individual rights. It will also change the nature of the contract a state has with its citizens. But equally, as a polity protective of our Right to Privacy, we must be careful that the baby is not thrown out with the bathwater.
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