By Mythili Mishra
The Supreme Courts unanimous judgement that declares the right to privacy as a fundamental right marks a key juncture in Indian politics. Policy, law, and politics must be reconceptualised and the dominant discourse challenged. Yet, celebrations should not distract us from the facts, and we must tread with caution in the game of Indian politics. One such area is that of the Aadhar Act.
The fundamental and inviolable
The nine-judge bench ruled that privacy is a fundamental right under the right to life, guaranteed in Article 21 of the Constitution and is at the constitutional core of human dignity. Adopting a conventional definition of privacy as the ‘right to be left alone’, the Court also delineated what the right entailed – preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
However, the judges were also careful to mention that the right to privacy, just like other rights in the Constitution, is not absolute in nature. Reasonable restrictions may still be applied to the exercise of this liberty. The Court went on to state the qualifiers for reasonableness, which implies that the infringement of privacy requires a law which stipulates a procedure which is fair, just and reasonable. Furthermore, it must fulfil the tests of legality, need and proportionality.
These qualifiers, thus, make compelling state interest a legitimate ground for overriding privacy. This is where the slippery slope begins and practical debates are reformulated.
Aadhar violative of the right to privacy?
A petition in the Supreme Court has challenged the validity of the Aadhar. The question of whether it is violative of the (now fundamental) right to privacy would be decided by a separate three-judge bench.
The opponents of Aadhar see it as a tool of governmental totalitarianism, creating a surveillance regime. The challenges which big data poses to privacy interests emanate from state and non-state entities, said the Court in an indirect reference to the question mark on the constitutionality of the policy. Since it collects the biometric data of individuals and has been seen as vulnerable to threats from non-state actors, foreign nations as well as the Indian state itself, citizens are sceptical of its benefits that are outweighed by the monumental costs which include threats such as that of identity theft.
It can also be a tool of state terrorism, collecting personal data of individuals and using it to discriminate against them, the biggest risk here being that of racial profiling. As the state has access to our phone conversations and text messages, we increasingly move towards a police state wherein the private conversations of individuals are criminalised. This is a deterrent to free speech.
The notion of consent is also key to the Aadhar debates. As all government services come to be linked to Aadhar, the question that comes to be asked is whether every citizen must necessarily surrender her/his right to privacy- one must obtain the card for filing ones taxes or availing government benefits (including mid-day meals)- in order to exist as a member of the nation-state.
Can the state justify its stand on Aadhar?
The recent judgement, however, need not mean that Aadhar Act has been invalidated. The courts are yet to decide whether it violates the right to privacy. If it is found to be infringing on privacy, the government can still prove that a compelling state interest, in the form of an urgent need for the implementation of government schemes exists, thereby legitimising restrictions on the right. The judgement itself states: Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. As for the proportionality requirement, the Centre would have to prove that the means (collecting biometric data) are in proportion with the ends (efficacy in the implementation of public policy).
Although the Aadhar Act has safeguards for data protection from third parties, news reports of recurrent failure of these safeguards have dominated the discourse. Yet, the government can argue that a need does exist, and it shall endeavour to diligently implement this clause and that it is not the absence of this clause but its lax implementation that has resulted in these breaches.
While the inviolable status given to privacy is certainly a normative win for the critics of Aadhar, it does not mean that the policy must go. Another battle is waiting to be played out.
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