THE MATTER OF PRIVACY
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