Ambiguities of Aadhaar

Government’s position on right to privacy has been inconsistent

Written by Prasanna S | Published:August 2, 2017 12:05 am
Aadhaar, Aadhaar Act, Right to Privacy, SC Aadhaar In Aadhaar, the government’s tendency to take self-contradicting positions is not limited to the right to privacy.

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.

The writer, a Delhi-based lawyer, has assisted and appeared for some of the petitioners challenging the Aadhaar project

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  1. H
    Hemen Parekh
    Aug 5, 2017 at 12:13 pm
    s: myblogepage. /2017/08/my-birth-right-trying-to-influence
    Reply
    1. S
      Sadasivan
      Aug 3, 2017 at 12:47 am
      The swedish Government may fall,as the Dat of all her citizens have been leaked.
      Reply
      1. P
        Parth Garg
        Aug 2, 2017 at 2:59 pm
        I say that Government’s position on right to privacy has been consistent. Every BJP supporter has a right to privacy. The opposition has no such right.
        Reply
        1. E
          Erhard Donig
          Aug 2, 2017 at 1:44 pm
          to see all this discussion from someforeign country is very strange - here in Germany everybody has to have some ID card - it can not get copied or missused - nobody even treid do to - why not introduce ID cards in India? ID- cards do not change privacy - it is only a mean for safety - to handel things very clear - thats all! Nobody attacks such a idea - so it is very confusing to watch India!
          Reply
          1. S
            Sadasivan
            Aug 3, 2017 at 12:46 am
            The Swedish Government may fall as all the data of her Citizens have been leaked.
            Reply
          2. #
            #AADHAARFAIL
            Aug 2, 2017 at 8:40 am
            When your fingerprint gets stolen, printed and used for aadhaar pay, cloning SIM and changing bank password using OTP, your aadhaar devotion will vanish. Jai Hind. 1. 25 lakh families in Rajasthan are unable to withdraw ration even after seeding #AADHAARFAIL with their ration card. 2. #AADHAAR authentication does not work for half billion Indians. 3. AADHAAR authentication does not work even after updating bio-metrics and waiting for 90 days 4. AADHAAR bio-metrics can be stolen, printed and used for #AADHAAR pay 5. #AADHAAR does not work for NRIs, people outside India 6. AADHAR can not be generated if a person's fingerprint matches with someone else's with 60 percentage probability. 7. Rogue government can deactivate your #AADHAAR blocking ur gas, electricity, mobile, bank account 8. AADHAAR works for millions of illegals staying in India 9. AADHAAR is blocking subsidies for millions of legitimate people 10. Take 10 lakh insurance for each #AADHAAR failure case/delete
            Reply
            1. #
              #AADHAARFAIL
              Aug 2, 2017 at 8:40 am
              Aadhaar product is SEVEN years old, authentication still fails for "Half Billion" indians, millions of honest tax payers are unable to link aadhaar with PAN, UAN, etc. #AADHAAR's right place is in dust bin, it has wasted billions of dollars of tax payers money. When your fingerprint gets stolen, printed and used for aadhaar pay, cloning SIM and changing bank password using OTP, your aadhaar devotion will vanish. Jai Hind. 1. 25 lakh families in Rajasthan are unable to withdraw ration even after seeding #AADHAARFAIL with their ration card. 2. #AADHAAR authentication does not work for half billion Indians. 3. AADHAAR authentication does not work even after updating bio-metrics and waiting for 90 days 4. AADHAAR bio-metrics can be stolen, printed and used for #AADHAAR pay 5. #AADHAAR does not work for NRIs, people outside India 6. AADHAR can not be generated if a person's fingerprint matches with someone else's with 60 percentage probability. 7. Rogue government can deactivate #AADHAAR
              Reply
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                Bajwa
                Aug 2, 2017 at 3:58 am
                Aadhaar is road to dictatorship. It could only help to target certain people to undermine democracy. We do not want our information to be in the hands of kind of politicians in power thesedays.
                Reply
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