The historic Supreme Court verdict on Thursday has forced the Narendra Modi government to acknowledge that right to privacy is not just a common-law right but a fundamental right of the citizens assured by the constitution. Hopefully, the verdict will enable any common man to challenge any demand either made by the government or private parties seeking his personal data. Also now he has a right to demand protection for his personal data, including his biometrics, which he has already shared with various agencies and companies.
Had the government brought in a law earlier on to address the privacy concerns Aadhaar raises, the issue would not have reached this point. Right to privacy is a given in a democracy. It is not something that is enforced by a court of law but a basic promise to a democracy's stakeholders. It is the job of the elected government keep that promise. But, ironically, here the government’s lawyers have been arguing that right to privacy cannot be a fundamental right but a common law right.
What complicated the matters was that even when the privacy issue was in the Supreme Court, the government has been expanding the ambit of Aadhaar rapidly to a range of activities, including transfer of government benefits, filing of income tax returns and operating bank accounts. Even mobile companies have begun to ask their customers to link their Aadhaar card with the phone number. Evidently, this irked the anti-Aadhaar lobby, carried the arguments to the apex court room and finally saw the Supreme Court defining right to privacy as a fundamental right. This is what happened in a nutshell.
And the result is the validity of Aadhaar itself can now be questioned through existing and fresh litigation. The very concept of Aadhaar is based on recording an individual’s biometric data, according him/her a unique number and mapping all of his/her activities to that number. This makes it easy for the authorities to monitor its citizens.
By increasing the ambit of Aadhaar, the government was getting aggressive. With the court ruling that privacy is a fundamental right, all the notifications issued by the government making Aadhaar mandatory will be questioned. Will Aadhaar go back to what it was meant originally — a tool for government to transfer government benefits to beneficiary bank accounts? One needs to wait and watch.
Aadhaar had raised privacy concerns even during the UPA days. In fact, going by the Aadhaar Act, even the Unique Identification Authority of India cannot share the personal information available under Aadhaar records with any agency unless there is an order from a district judge. On issues of national security, only a joint secretary level officer can authorise access of personal data, that too after getting an order from the central government. But, that's in theory. There have been reports of Aadhaar data leakage. This is what raised widespread concerns.
Most likely, the government will have to rework the Aadhaar programme factoring in the court ruling and also depending on the outcome of other related cases. All this will slow down the process of expanding the ambit of Aadhaar as anti-Aadhaar lobby will derive more strength in the backdrop of the SC order. The government will have to go back to the planning room to ascertain where Aadhaar can be made compulsory and where it cannot be.
But, it is unlikely that the order will mean the end of Aadhaar. Much work and investment (Rs 8,800 crore until July) have gone into the institution of Aadhaar-mechanism with 117.29 crore cards already issued. Maybe, the government will have to scale down the process. More importantly, the future of Aadhaar depends on the government’s willingness and ability to work on stringent laws that address privacy concerns of Aadhaar holders. But, to get a clearer picture one needs to wait and watch for the outcome of other pending cases on Aadhaar.
All the cases pertaining to Aadhaar will now go back to a smaller bench and will be relooked in the backdrop of the ruling of the constitutional bench. If the courts rule that Aadhaar cannot be imposed on a citizen and must remain as a voluntary option, then the ambit of Aadhaar will be significantly narrowed.
But the idea of Aaadhar cannot die. It is a revolutionary tool India has devised and is fundamental to the Director Benefit Transfer (DBT) programme conceptualised and executed by two successive governments. Certainly, it has helped to plug subsidy leakages to a great extent. The scheme is critical for the new economic structure. It is to be remembered that a few developed nations have a similar unique identity structure for their citizens. However, the government needs to make necessary legislations that address concerns about data privacy laws, something even Nandan Nilekani, the architect of Aadhaar, has mooted.
In the context of the SC verdict, the Modi government's big task is to immediately address the privacy concerns to take the Aadhaar programme ahead. The SC verdict makes this a necessary condition for Aadhaar to survive. The apex court has reassured the citizens about their right to privacy - a sacred promise of democracy. Rather than seeing it as a setback, the government should take it as an opportunity to bring in stringent privacy/ data protection laws and make Aadhaar even a better idea.
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Updated Date: Aug 24, 2017 15:05:02 IST