The central government has justifiably come under some criticism for taking conflicting positions before the apex court on the question of whether Indian citizens enjoy a fundamental right to privacy under the Constitution. In the Aadhaar case, which is a batch of more than a dozen petitions challenging the constitutionality of the Aadhaar project and the 2016 Aadhaar Act, the government argued against the existence of a fundamental right to privacy despite more than 40 years of jurisprudence developed by the court holding it to be so. For that, it has relied on some parts of the judgments in an eight-judge bench decision of the court in M.P. Sharma v. Satish Chandra (1954) and a six-judge bench decision in Kharak Singh v. State of UP (1962).
Even as this question has now been referred to a nine-judge bench, the government has taken the opposite position in the Whatsapp case: Arguing that personal data, and consequently privacy, is an extension of life and personal liberty guaranteed under Article 21 of the Constitution. This is but one in a series of paradoxes that have punctuated the government’s positions.
In 2011, when the Ministry of Law and Justice referred the question of the continuing operation of the Aadhaar project without a law, both the then Attorney-General Goolam Vahanvati and an advisor in the department had stated in their opinion that the right to privacy is a fundamental right under Article 21. This position was repeated in the government’s counter-affidavits filed in the Aadhaar petitions before the Supreme Court between 2012 and 2014. In 2015, the central government began to argue against a fundamental right to privacy. Around the same time, its arguments in the criminal defamation case were grounded on the fundamental right to privacy. There, it succeeded in its attempt to save Section 499 of the IPC that provided for defamation as a criminal offence from being struck down as being in violation of the right to free speech.
In Aadhaar, the government’s tendency to take self-contradicting positions is not limited to the right to privacy. First, it has argued for Aadhaar as a project of inclusion on the one hand, even as, on the other hand, all the statistics claimed in support of the project seek to prove exclusion or “savings”. Second, it has argued that the Aadhaar project has given millions of Indians an identity and made them visible to the state even as it defends its porous verification procedures saying that only 0.03 per cent of the enrollees were without prior identity documents.
Third, following many incidents of “data leaks” in which government websites were shown to be leaking personal information, including Aadhaar numbers of people, the UIDAI is reported to have played down the dangers of such leaks. However, the Act prescribes a punishment of imprisonment up to three years for such supposedly innocuous disclosure. Fourth, it has been argued that basic demographic and biometric data collected by private enrolment agencies is not so sensitive as to have any personal security implications. At the same time, UIDAI had been turning down RTI requests on the sanctity of UIDAI data on a legal exemption that relates to the sovereignty and integrity of India and national security. Fifth, there has been a tacit acknowledgement of the danger of storing one’s religion in a database such as Aadhaar’s when the Act included a specific prohibition on that. However, the law sanctions the storage of one’s name and fathers’ name which together can be used determine religion with near certainty.
This enumeration is by no means exhaustive. Some of these inconsistencies are subtle, but others like the government’s position on the fundamental right to privacy are less so. Even on pure questions of law, one hopes that dispassionate and consistent reason, rather than convenience in the context of a specific case determines its positions before the court. More so when citizens’ fundamental rights are involved.