The Supreme Court on Wednesday spoke of the need to draw a distinction between collection of data under the Aadhaar programme and its utilisation saying there may be a legitimate state interest in using it for some purposes, but not for things that fall strictly in the private realm.
“I should have no concern that government is entitled to see if I am paying taxes. But If I’m going to a restaurant with my wife, there is no reason for the state to know that,” Justice D Y Chandrachud, who was on a five-judge Constitution bench hearing a batch of petitions challenging the constitutional validity of the Aadhaar Act, observed.
“So the question is, should we not make a distinction between collection of data and utilisation of data…. Yes, it should not be used for things which fall strictly in the private realm. But there may be some areas in the private realm that government may have concerns about,” Justice Chandrachud said, adding it may be needed to deal with terror or money laundering. Concerns of privacy must be balanced with concerns about what it should not be used for, the judge added.
Justice Chandrachud was responding to senior advocate Shyam Diwan’s argument that the architecture of the Aadhaar programme enabled the creation of a surviellance state.
“It enables real-time surveillance,” Divan told the bench headed by Chief Justice of India Dipak Misra and also comprising Justices A K Sikri, A M Khanwilkar and Ashok Bhsuhan. Divan said this was not permissible under the Indian Constitution.
He cited cyber security experts to point out flaws in the programme design.
The technology that is used to store the biometric data was not Indian and was owned by foreign entities, Divan said, adding that it was possible to steal fingerprint data from the reader used to collect information for Aadhaar by employing what are called “skimmers” before the data is encrypted.
Justice Chandrachud said the issue raised a question. “Are we not transgressing into an area which is beyond our review?” he asked.
He added that two perspectives were possible in the debate, one being that no system is safe. “Even the Pentagon is not safe,” he said and asked if that should mean nothing should be done.
He also wondered if the arguments would tantamount to suspecting the motives of the government.
“Are we not second guessing the executive government of the day. You cannot be oblivious of the fact that this collection of data began in 2009, not in 2014,” the judge said.
“How are we comfortable with the fact that when we travel to Jaipur and use Google Maps, our location is traced but if government has our data, it’s a problem…. Of course government is subject to Article 14,” the judge pointed out.
Divan replied that the question was not the collection of data but surveillance by the state.