The Basis Of Privacy

Aadhaar legislation points to the need for a comprehensive privacy law.

Written by Apar Gupta | Published:March 29, 2016 12:02 am
ration card, passport application, ration card and passport, aadhaar, maharashtra govt, pune news Photo for representational purpose.

Most of the debate on the Aadhaar bill has centred on the right to privacy. All five amendments suggested by the Rajya Sabha, subsequently rejected by the Lok Sabha, had an element of this right within them. But the core deficiency rested not in the lack of protections in the Aadhaar bill but in the absence of a comprehensive privacy statute to develop and enforce them.

We must look at both substantive protections and the procedure available to enforce them. Many people regard privacy as an amorphous concept, which is also why it is hard for them to visualise any harm to it. Recognising this problem, in 2012, the Justice A.P. Shah Committee suggested nine distinct principles canonising the right to privacy. An analysis of the Aadhaar bill shows that it does not even recognise some of these nine principles. For instance, take the principle of access; a person cannot in any instance demand access to their core biometric information under the Aadhaar bill.

But greater difficulty exists in enforcing the laconic safeguards of the bill. Broadly, the three forms of judicial remedy usually enforced are civil, criminal and the writ jurisdiction of high courts and the Supreme Court. The Aadhaar bill makes all these three remedies ineffective for individuals.

The civil remedies under the bill oust the jurisdiction of civil courts in favour of the system set up for penalties under the Information Technology Act. The existing penalties under the IT Act are deficient, as they were never intended to provide comprehensive privacy legislation. Even if they are amended, enforcement under the IT Act has never worked properly and shows no promise of improvement. Under it, the jurisdiction of civil courts is barred in favour of “adjudicating officers”. These officers are usually a serving IT secretary of the state government given additional charge to adjudicate cases under the IT Act. Though persons of high competence, a lack of resources and training handicaps not only their capacity but also the quality of judicial orders necessary to withstand review. Such scrutiny would naturally arise in appeal as provided under the IT Act — but, for the last three years, the Cyber Appellate Tribunal that hears such appeals has not been properly constituted and is not functioning.

The problems with enforcement of criminal remedies are more straightforward: Only the UIDAI can make complaints for the offences contained under the Aadhaar bill. Not only is this a conflict of interest but it also takes away the Aadhaar user’s recourse to a criminal remedy. It may be argued that penal provisions under the IT Act and the IPC can be invoked by individuals. But such an assertion must consider the absence of any notification mechanism. The Aadhaar user is never informed when a crime relating to their data occurs. They will never have the particulars necessary to register a criminal complaint.

This brings us to the final remedy of writs that can be availed of to enforce the fundamental and statutory rights available to a person. It would normally be expected that a person would be able to approach an HC for the enforcement of rights under the Aadhaar bill. Especially if the UIDAI does not provide authentication as it is intended to do, or fails to correct the data records. Most people know the poor quality of data entry in government IDs. Aadhaar requires a safeguard clearly conferring a right than can be enforced through a writ. However, these rights are problematically phrased as “requests” for supplying and correcting information. This dilution is made clear by the absence of the requirement of a hearing, a reasoned order or an appellate process under the bill.

It is not without reason that the Justice Shah report suggested a comprehensive legislation to safeguard privacy and also the office of a central privacy commissioner to develop and apply it. Even when suggesting the establishment of a privacy commissioner, who could impose penalties for violations, it recognised the central role of existing judicial forums by retaining the jurisdiction of civil courts. While many may see privacy as the core issue in the Aadhaar programme, privacy itself transcends it. As our everyday lives become connected, a comprehensive privacy legislation is an essential safeguard.

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  1. R
    RAW.News
    Mar 29, 2016 at 1:27 am
    All data will be freely available to Sri Lanka and now stan.
    Reply
    1. K
      K SHESHU
      Mar 29, 2016 at 6:52 pm
      Govt. Comes with one or other plans to stifle freedom..
      Reply
      1. I
        Intelligent.Idiots
        Mar 29, 2016 at 9:59 am
        The size of the card is tooooo small. They should make it bigger so everybody, even the poor villager should buy a trunk box to carry that. WONDER WHO WAS THAT STIPID DUMBRAHMIN WHO DECIDES THE SIZE OF THE CARD.
        Reply
        1. R
          Raja
          Apr 2, 2016 at 8:33 am
          All my bio-metric data are available with American/Canada embies when I applied for visa. It has not done any harm to me,yet.
          Reply
          1. N
            Niladrinath Mohanty
            Mar 29, 2016 at 12:30 pm
            Never in one place all these learned writers have given any specific example how a common man will be affected by so called lack or protection of privacy. It will help me if some more enlightened reader can throw some light.
            Reply
            1. S
              sajeev
              Mar 29, 2016 at 9:22 am
              What will we do now? Bachao, bachao, bachao!!!
              Reply
              1. D
                disqalt
                Mar 29, 2016 at 9:22 am
                Here are a couple of articles on privacy that may help us understand the real issue - that there can be no democracy and human rights without privacy.lt;br/gt;lt;br/gt; lt;br/gt;MIT Technology Review - 'The Real Privacy Problem' by Evgeny Morozov October 22, 2013.lt;br/gt;lt;br/gt; lt;br/gt;'Without Privacy There Can Be No Democracy' By The Daily Take Team, The Thom Hartmann Program (truth-out).
                Reply
                1. D
                  disqalt
                  Mar 29, 2016 at 9:27 am
                  One other thing. Aadhar is supposed to be for the welfare of the poor. Then why is public spending on health and education being cut? Why are hundreds of thousands of crores in "bad loans" not being recovered from big business? Why are thousands of crores supposedly stashed away overseas not being brought back to India? These could have worked wonders for poverty alleviation projects, health and education, infrastructure development, etc. Shouldn't it be the priority to recover this stolen wealth first?
                  Reply
                  1. D
                    disqalt
                    Mar 29, 2016 at 10:04 am
                    The essay at at says,lt;br/gt;"The Supreme Court has erted that Art. 21 is the heart of the Fundamental Rights ...lt;br/gt;Right to privacy ... has come to its existence after widening up the dimensions of Article 21. The consution in specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the consution read with the Directive Principles of State Policy." lt;br/gt;Let me quote the Article from the Law Ministry web site :lt;br/gt;"21. No person shall be deprived of his life or personal liberty except according to procedure established by law.lt;br/gt;[21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]"
                    Reply
                    1. D
                      disqalt
                      Mar 29, 2016 at 10:05 am
                      The essay is at lt;br/gt;lt;br/gt;lt;br/gt;The Consution is to be found at lt;br/gt;
                      Reply
                      1. D
                        disqalt
                        Mar 30, 2016 at 3:27 am
                        @Niladrinath Mohanty: If I may offer my two-bits' worth, though I cannot claim to be all that enlightened --lt;br/gt;lt;br/gt;"Never in one place all these learned writers have given any specific example how a common man will be affected by so called lack or protection of privacy."lt;br/gt;lt;br/gt;Apart from the fact that democracy and human rights are valuable IN AND OF THEMSELVES, you might have heard of Amartya Sen's finding that "(n)o famine has ever taken place in the history of the world in a functioning democracy." And there can be no democracy without privacy, for reasons explained by the writers of the articles I have posted already, and am mentioning here again. The URLs are being deleted by this site, unfortunately, but a quick search will pull up these articles. There's plenty of material available on the web. lt;br/gt;lt;br/gt;- 'The Real Privacy Problem' by Evgeny Morozov October 22, 2013, MIT Technology Review.lt;br/gt;-'Without Privacy There Can Be No Democracy' By The Daily Take Team, The Thom Hartmann Program (truth-out).
                        Reply
                        1. D
                          disqalt
                          Mar 30, 2016 at 3:37 am
                          Having said that, would you agree that recovering the hundreds of thousands of crores not paid back by big business and thousands or tens of thousands of crores stashed away abroad should be our priority? After all, these moneys have ALREADY been funnelled out of the national exchequer, and the idenies of those who have done this are known to the government. Preventing the drawing of double rations by some poor or not-so-poor person is undoubtedly a worthy cause, but it can be taken up AFTER all those moneys are recovered, perhaps? And in ways that do not invade the citizen's privacy?
                          Reply
                          1. P
                            Prateik
                            Mar 29, 2016 at 4:08 am
                            Right to Privacy is not an absolute right. The largest bench in the past have upheld that Privacy is not a fundamental right at all! Another PIL latest wants the the privacy to be declared a fundamental right. So hold on your horses till the SC gives out the latest verdict on Right to Privacy.
                            Reply
                            1. P
                              Prateik
                              Mar 29, 2016 at 4:00 am
                              And what Will they do with the data?biometric details aren't the same for two individuals.
                              Reply
                              1. I
                                Indian
                                Mar 29, 2016 at 6:12 am
                                For more than 40 CRORE POOR INDIANS and another 60 CRORE JUST above POVERTY LINE Indians FOOD and GOOD HEALTH CARE is more important than PRIVACY. ............. As the PRIVACY is being misused to LOOT and STASH THAT LOOT safely, it should be done away with. All FINANCIAL TRANSACTIONS should be made PUBLIC so that LOOT REDUCES.
                                Reply
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