Nine Things Mooted By The State About Right To Privacy And Aadhaar In The Corridors Of The Court

From the day of dawn, the evolution of grand biometric identification project remained a bone of contention. As the skeletal framework of Aadhaar originates from 2009 Notification issued by Planning Commission. However, severe apprehensions regarding violation of privacy by the state led to severe contestations with civil society. It finally ended up by knocking the doors of the judiciary. As the first petition Justice K.S. Puttaswamy (Retd.) & Another v Union of India (WP(C) 494), is dealing with several matters related to Aadhaar. As multiple cases got attached to this case and now it is collectively dealing with a batch of twenty-two petitions. The nine-judge Constitutional Bench is dealing with the issue whether the right to privacy is a fundamental right under Article 21.  Below is the list of nine arguments debated in the corridors of the court in which state and central governments were represented by the Attorney General of India, Additional Solicitor General of India, Senior Counsels or representatives of the particular states and also UIDAI.

Disregarded Privacy

Several petitions were filed to get interim relief against the fear of exclusion and privacy violations. However, the state called such concerns as being hypothetical, phantasmagorical, futuristic, conjectural and being academic discourse. Hence it is devoid of any basis, in reality, ignoring material facts. The state even went on to claim that Right to Privacy, Personal Autonomy and Bodily Integrity as not being absolute.

According to the state right to privacy is a vague, subjective, amorphous, inchoate and sociological concept. Its vagueness is attributable when we try to ascertain what one must abide by not intruding into another person’s right to privacy. Hence it makes it difficult to conceptualise due to its subjective assumption of an individual. The consensus amongst scholars also varies as the concept differs from one person to another. Even regarded the conception of privacy as merely sociological and would not fit in the “jural” context. Therefore, it cannot be given an elevated status of the right to privacy.

Privacy: Common Law not a Fundamental Right

After disregarding the conceptual existence of privacy, the state did argue that it can be a qualified legal right. It stated that privacy consists of a diverse sub-species of liberty which comprise multi-faceted rights. Therefore every aspect could not be afforded the status of a fundamental right.

According to Attorney General, there is a right to privacy under common law, and the Constitution of India does not explicitly provide or mention the fundamental right to privacy. In similar lines, Senior counsel CA Sundaram (State of Maharashtra) argued that data could be protected through common law rights, statutory rights and regulatory mechanisms, but not through fundamental right. However, these forms of rights could be easily abrogated, responded Justice Chelameshwar.

Poverty, Right to Identity and Right to Life of others

The state even pitted the rights to privacy with the right to life of others. While referring to the right to food and shelter, under Article 21, the Attorney General stated that the right to life of others would take precedence over the right to privacy. According to him the right to privacy would act against the interests of the 270 million starving people in the country. It was repeatedly stated that it would seriously hamper public interest since nearly 98 percent of the population was covered by the Aadhaar scheme.

In this context, the right to privacy could not be realised in a developing country like India, the right to life of poor and marginalised sections of society in the country is paramount. Therefore, it would be a huge obstacle for the smooth functioning of the Aadhaar system and even lead to the deprivation of food and shelter for millions, ensured by welfare schemes.  Attorney General said if handing over biometric data was essential to save lives of other people, should you be allowed not to hand over your data?

Even Senior counsel CA Sundaram (State of Maharashtra) argued that in a given situation where two rights were pitted against each other. On the one hand, there is a possibility of subsidised food, which would be the result of welfare schemes attached to the Aadhaar system, and on the other hand, there is the possibility of private information being leaked. Posing the two, he stated that perhaps the availability of subsidised food or welfare was more important. When being asked by Court whether civil and political rights be subservient to economic interests? And is it possible to balance the two needs, and have welfare without invading privacy? He differentiated the two by stating the former was a right, and latter one could not be afforded status of a right.

However, Justice Nariman interjected these ‘emotional pleas’ and held that marginalised sections would also benefit from a right to privacy. Further held that we cannot “forget the little man’s right to privacy”, who have been marginalised have also suffered terrible harms in the absence of a right to privacy. Even Justice Chandrachud said privacy was not “an elitist construct” and that it was for the benefit of the masses as well.

The state held the right to identity as an inherent part of Article 21 and imperative for a meaningful right to life. The fundamental right to identity would provide identification for each resident across the country and would be used primarily as the basis for efficient delivery of welfare schemes.  For which the government is implementing the Aadhaar Act, the Government is seeking to discharge its positive duties.

Biometrics for Economic Growth, Criminal Investigation, and Prevention of Crime and Terrorism

The purpose, rational and benefits behind linking PAN with Aadhaar was justified by the state. While the growing menace of bogus/fictitious/multiple PAN Cards by both firms and individuals used for money laundering, tax evasion, creation and channelling of black money and creating layers of shell companies. Also “bogus bank and demat accounts, undisclosed accounts for making financial transactions.” Therefore “seeding of Aadhaar number into PAN database will allow a robust way of de-duplication” and “weed out any undetected duplicate PANs” Though court upheld the decision of linking Aadhar with PAN in Binoy Viswam case. As it agreed with the purpose of “unearthing black money or checking money laundering is to be achieved to whatever extent possible” and “introduction of Aadhaar into the tax regime, it cannot be denounced only because of the reason.”

While responding to the petition which was raised regarding fake or unverified phone subscriber and its illegal misuse for domestic criminal and terrorist activity. The state held that in the “process of linking Aadhaar, there will be almost `NIL’ chances of delivery of SIM to the wrong person and the traceability of customer shall greatly improve.” In response, the court ordered to bring a mechanism for identity verification as well as, the addresses of all mobile phone subscribers for new subscribers which could be implemented effectively within one year.

Originalist Position

The ideas of founding fathers did not intend to include privacy as a fundamental right, the state argued and further held they deliberately choose to omit. While following the intention of founding fathers of Indian constitution leads to following the originalism and negating ideas of living constitutionalism, where the changing and dynamic society which is evolving over time would interpret the matters of social necessity.

According to Senior counsel CA Sundaram (State of Maharashtra) if the Constitution was silent and if the founding fathers had introduced rights without an ambit then the judges could interpret. But since the founding fathers had considered a right and then rejected it, the intent was clear. It was also held that the reason that the founding fathers struck down the right to privacy because these specific forms were statutorily protected.

Complex and Horizontal Issues

The Government counsel Arghya Sengupta (State of Haryana and TRAI) referred to the cardinal principle of data protection i.e. ‘purposive limitation.’ He held that it makes it difficult in the actual implementation of these principles since the structure of these contracts allowed them to share information with other connected bodies. He believes that data protection was a horizontal issue and vastly complex, and was not the same as a privacy concern.

Assuring Protection and Security

While responding to the security and privacy issues raised against such a massive biometric system. The state assured that the Aadhaar scheme would not turn India into a totalitarian state. Further claimed that Aadhaar has a requisite statutory backing and has been devised carefully after considering all issues concerning privacy. It primarily contains a whole range of necessary statutory protection and other safeguards. It is claimed that is based on the principles of Minimal Data, Optimal Ignorance, and Federated Database.

Pre/Post Aadhar Act

While responding to the validity of court order (August/October 2015), the state argued that they were passed at a time when Aadhaar was being implemented as a scheme, and those orders have not been passed in the context of examining the validity of any legislative measure. However, in Supreme Court did pass an order again on September 14, 2016, with regard to the Minority scholarships case (W.P.(C) 686/2016) after the passage of Aadhaar Act, 2016. In this case, the court again reiterated the previous order (October 2015) which called Aadhaar as voluntary and ordered to stay on making it compulsory.

The power of Parliament to make laws.

The state’s held that it is the power of parliament to make and competent enough to pass the law and provide the statutory framework to give legislative backing to Aadhaar. It even held that if there is any fundamental right to privacy it needs to come through a constitutional amendment and not through judicial interpretation.

P Arun is a Research Scholar from Department of Political Science, University of Hyderabad.