The government told the Supreme Court on Thursday that “privacy and confidentiality are non-negotiable under the Aadhaar Act”. Additional Solicitor General Tushar Mehta, representing the Unique Identification Authority of India (UIDAI) — nodal agency for implementing Aadhaar — conveyed this to a nine-judge Constitution bench headed by Chief Justice of India J S Khehar during discussions on the safety of data collected for Aadhaar enrolment.
Justice S A Bobde, who is a part of the bench which also includes Justices J Chelameswar, S K Kaul, R F Nariman, A M Sapre, R K Agarwal, D Y Chandrachud and Abdul Nazeer, ticked off the debate wondering “is there a clause on protection of data in Aadhaar Act?” Attorney General K K Venugopal, appearing for the Centre, answered in the affirmative and referred to Chapter VI of the Act which deals with “protection of information”.
Stretching the argument, Justice Chandrachud said, “If you have one billion (Aadhaar) cards and 80 million phone numbers, I don’t want the state to pass on my details to some 2000 service providers who will send WhatsApp messages everyday to buy ACs and all kinds of cosmetics.”
He continued: “No one is denying it (Aadhaar) is a social welfare measure. But it is vital commercial information for service providers. Do you have a robust mechanism? You must have a robust mechanism to ensure that this data does not go to those commercial service providers..”.
Venugopal explained that “even demographic data is protected in Aadhaar…One doesn’t have to give phone number etc if they have apprehension of misuse”. Senior counsel Gopal Subramanium, appearing for the petitioner, contended that the “enrolling authority under Aadhaar were private parties and not the Government of India”.
Justice Nariman took note of the chapter on “protection of information” in the Aadhaar Act and sought to know “is this not legislative recognition of privacy as a fundamental right”.
Mehta said it was not so but added that he will deal with the issue in detail later. UIDAI has already taken the stand that “though it (privacy) is a right and an enforceable right, (it is) not a fundamental right”.
A-G Venugopal, meanwhile, repeated what he formulated on Wednesday — that privacy could be a “wholly qualified fundamental right” though the Centre’s view was that every aspects of it should not be treated as a fundamental right. “Even assuming it is a fundamental right, it is a multi-faceted right and every facet will not automatically and ipso facto qualify to be a fundamental right”, he said.
On informational privacy, the AG said, “In any case where the fundamental right of others will be defeated if informational privacy is claimed, no such informational privacy can ever be a fundamental right.” Stating that the state had a “blanket power” against informational privacy, he said, “(The) state is entitled to ask for fingerprints and iris scans. No reason for denying that. But if (information sought for) is wholly irrelevant or uncharacteristic, then informational privacy kicks in. If it is information relevant to state, there is no question of privacy. For purpose of Aadhaar if it is asked whether you (subscriber) have (an) illegitimate affair, then it is wholly irrelevant.”
In other developments in the case, Maharashtra on Thursday opposed the demand to make privacy a fundamental right, saying the question was debated at the time of drafting the Constitution and dropped.
Senior Counsel A Sundaram, who represented the state, said: “Privacy is a statutory right, a common law right and constitutionally recognised right, but not a fundamental right.”