With the nine-judge Bench ruling that right to privacy is a fundamental right, the spotlight returns to Aadhaar, the validity of which has been challenged in court. While the judgment on Thursday was limited to the issue of right to privacy, the matter of whether Aadhaar violates the right to privacy will be dealt with by the five-judge bench hearing the petitions since 2015. But, without mentioning the unique identification scheme, the Bench on Thursday touched on various points that the petitioners and the government have raised in their challenge and defence of Aadhaar.
“The contemporary age has been aptly regarded as ‘an era of ubiquitous dataveillance, or the systematic monitoring of citizen’s communications or actions through the use of information technology’. It is also an age of ‘big data’ or the collection of data sets. These data sets are capable of being searched; they have linkages with other data sets; and are marked by their exhaustive scope and the permanency of collection. The challenge which big data poses to privacy interests emanate from state and non-state entities,” wrote Justice D Y Chandrachud for himself, Chief Justice J S Khehar and Justices R K Agrawal and S Abdul Nazeer.
This is one of the main arguments cited by those opposing Aadhaar — that it has the potential to be a tool of continuous, mass surveillance. Justice Chandrachud said that though information may exist in silos, it has the potential to create the profile of every individual if the interlinks can be established. In the age of big data, it is a “universally accepted fact that information and data flow” are fast becoming elemental to the social and economic order, he said. Quoting law lecturer Dr Yvonne McDermott Rees, he talked of “veillant panoptic assemblage”, where data gathered through the ordinary citizen’s veillance practices finds its way to state surveillance mechanisms, through the corporations that hold that data.
“The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed,” said Justice S K Kaul. He added that today, states across the world are also “profiling” their citizens, which, according to EU regulations, is an “automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences.”
This can “result in discrimination based on religion, ethnicity and caste”, and can “also be used to further public interest and for the benefit of national security,” he said. Justice J Chelameswar too hinted at the concerns related to Aadhaar. “Informational traces” also fall in the realm that is the subject of debate when discussing privacy, he said. “Telephone tappings and internet hacking by State of personal data is another area which falls within the realm of privacy,” he added. Even the question of whether privacy is a fundamental right or not “arises out of such an attempt by the Union of India to collect biometric data regarding all the residents of this country.”
On the issue of collecting data without consent, as Aadhaar becomes mandatory, Justice S A Bobde said that “the non-consensual revelation of personal information”, including health records, finances, place of residence, location etc, “efface one’s sense of personal and financial security.” But the judges also mentioned limitations to privacy, examples that align with the government’s justification for Aadhaar. Justice Chandrachud ruled that creating regimes for data protection “requires a careful and sensitive balance between individual interests and legitimate concerns of the state”. “Protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits” are some of the state’s legitimate concerns, he said. Read what the 9 judges wrote on Right to Privacy
Similarly, Justice Kaul ruled that apart from national security, “public interest element” could also be a restriction. He referred to the European Union’s regulations of 2016, which include “public interest, including scientific or historical research purposes or statistical purposes”. The EU regulations also mention “unidentifiable data” or data in which personal data can no longer be attributed to any specific subject. Though the government has not said that Aadhaar is a tool for national security, it has consistently claimed that it has helped save thousands of crores of public money that was being siphoned off from social welfare schemes. The government has also said that the data collected through Aadhaar can help in research and create better policy.
Arghya Sengupta, research director and founder of Vidhi Centre for Legal Policy, which helped the government in drafting the Aadhaar Act, told The Indian Express that the judgment would not have any direct impact on the Aadhaar case. He said the Aadhaar Act already includes a chapter on data protection, and as far as the challenge to it in the court goes, any law would have to be tested on constitutional grounds. Sengupta is also part of the government’s committee on data protection, which is headed by Justice B N Srikrishna.