India Today - - UPFRONT - By M.G. Arun

Is pri­vacy a fun­da­men­tal right? In a move that will have wide-rang­ing ram­i­fi­ca­tions, the Supreme Court has set up a nine-judge bench to re­visit its 1954 and 1962 rul­ings, which held that the right to pri­vacy was not a fun­da­men­tal right. Which way the court goes will de­ter­mine if Aad­haar can be used as an om­nibus iden­ti­fi­ca­tion tool—for sundry gov­ern­ment ben­e­fits, to pay in­come tax, to buy mo­bile SIM cards and more.

The cen­tral gov­ern­ment, too, be­lieves the right to pri­vacy is not a fun­da­men­tal one but a com­mon law right, and Ar­ti­cle 21 of the Con­sti­tu­tion pro­tects only unau­tho­rised in­tru­sion into one’s pri­vacy. Pe­ti­tion­ers in the case, how­ever, ar­gue for a broader def­i­ni­tion of pri­vacy, with se­nior coun­sel Gopal Subra­ma­nium say­ing the fun­da­men­tal ideas of lib­erty and free­dom can’t ex­ist with­out right to pri­vacy.

The hear­ing of the case marks sev­eral months of de­bate on the use of Aad­haar, which ac­cesses rel­a­tively in­ti­mate per­sonal data, in­clud­ing bio­met­ric and iris scans, for the most com­mon­place ben­e­fits and pur­chases. The is­sues are data se­cu­rity, pri­vacy and whether Aad­haar should be com­pul­sory to get ben­e­fits. Ex­perts feel de­nial of ba­sic so­cial se­cu­rity schemes just be­cause a per­son is not en­rolled for Aad­haar is un­ac­cept­able. “Deny­ing peo­ple some­thing they are en­ti­tled to, just be­cause your tech­nol­ogy doesn’t work prop­erly, is in­hu­man and cruel,” says an ex­pert on pri­vacy laws. Many ar­gue Aad­haar is far more in­tru­sive than other data­bases, since bio­met­ric info is col­lected as well. “Why bio­met­ric au­then­tifi­ca­tion in­stead of an OTP (one-time pass­word)? The gov­ern­ment should use trans­parency as a mode of ac­count­abil­ity rather than cen­tral surveil­lance,” he says. The ba­sic de­sign of Aad­haar also needs to be im­proved as it ex­poses more than what is ac­tu­ally re­quired at its point of use.

In its 2012 re­port, the Jus­tice A.P. Shah-led group of ex­perts on pri­vacy said a frame­work on the right to pri­vacy in In­dia must in­clude con­cerns around data pro­tec­tion on the in­ter­net, pro­tec­tion from unau­tho­rised in­ter­cep­tion, au­diovideo surveil­lance, use of per­sonal iden­ti­fiers, bod­ily pri­vacy in­clud­ing DNA and phys­i­cal pri­vacy. Ex­perts say ev­ery sys­tem, in­clud­ing the US Na­tional Se­cu­rity Agency, is prone to leaks and hack­ing. While the SC ver­dict will de­fine the ex­tent of pri­vacy, a leg­isla­tive frame­work to ad­dress the con­cerns around data pro­tec­tion and pri­vacy is also crit­i­cal.

Aad­haar is more in­tru­sive than other data­bases be­cause it also uses a per­son’s bio­met­ric in­for­ma­tion

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