The deliberations on the imposition of the Aadhaar scheme by the Government of India come back to the thorny question of the right to privacy, which isn't a fundamental right guaranteed by the Constitution of India, but has, over the years, been argued for by reading the provisions of Articles 19 and 21 respectively.
On Thursday, too, the nine-member Constitutional Bench of the Supreme Court, hearing the case, raised the same issue before the respondents.
Justice DY Chandrachud, one of the members of the bench, asked senior counsel Sajan Poovayya, who was appearing on behalf of the petitioners, the qualitative difference between logging into an electronic device using fingerprint identification and sharing similar biometric details with a government database.
The question is reasonable, especially since millions of citizens every day share a good deal of information, which would count as private (date of birth, email, address, biological and geographical details) with many online portals, especially on social media, unthinkingly.
In his response, Poovayya said the problem with Aadhaar being made mandatory, as he saw it, wasn't so much about having to share information with the state but with the lack of adequate checks and balances to address issues of safety. What safeguard did the citizen have against any possible leak of sensitive data — and instances of such breaches, involving bank details for instance, have already wreaked havoc.
"The state can't be entrusted with citizens' data without proper oversight being there," he said. "Declaring right to privacy a fundamental right is the first step towards ensuring oversight," he said.
Although it does not still exist on paper, right to privacy has been invoked in several cases, one as early as 1954, to protect citizens from being wrongfully persecuted, kept under surveillance or intimidated by the state or non-state actors. As Devangshu Datta has pointed out, "In effect, the use of Aadhaar for all sorts of things means there are over a billion Indians wandering around with their digital pants off."
And that's not all. The matter extends to an argument for ensuring privacy as a right of every citizen.
Poovayya's reaction, which is already more than sound, can be extended to point out a crucial difference between mandatorily sharing information with the government and doing it out of our own volition with whichever internet platform of our choice.
Yes, Google, Facebook, Twitter and assorted websites do collect information from us to allow us the right to use them. But in such cases, it is we who voluntarily offer our details to these sites and, should the day come when we do not wish to do so, can withdraw the same from them. In the case of Aadhaar, data once given to the government is stored indefinitely, without adequate safeguards as has been evident in several cases, and remains vulnerable to misuse.
Under the circumstances, the case for having a clearly defined right to privacy gets only stronger. Not only will it then be possible for citizens to invoke it against private entities like Google and Facebook but also against the State, should the latter fail to uphold its subjects' safety.
With the right to privacy and legal provisions for addressing its violation, a range of crimes, from illegal surveillance to persecution due to a medical condition to credit card theft, can be addressed much more effectively than is now possible.
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