Anil Anand
When a nine-judge Bench of the Supreme Court declared that privacy is a fundamental right of the citizens, protected as an intrinsic part of the right to life and personal liberty and as part of the freedoms guaranteed by the Constitution, they set in motion a chain reaction that veered from touching raw nerves in the ruling dispensation that has been questioning the right to privacy in absolute terms to a by now much debated future of Aadhaar card.
Although the privacy debate had been going on over the decades and got intensified from time to time as the Governments of the day made, direct or indirect attempts, to muzzle privacy sometimes in the name of internal emergency and at times under the garb of development but the onset of Aadhaar card as a concept gave it a real fillip. The Governments, first UPA and now NDA, brought and followed up the concept of Aadhaar card as a measure of social welfare and means to check corruption. The fact that it entailed gathering personal data of an individual, rich or poor, codify it under a number and subsequently use it for public purposes led to doubts about its leakage and subsequent misuse.
Retired Justice K S Puttaswamy was the first, among the clutch of petitioners including some social workers, who challenged the Aadhaar card concept as something obtrusive to privacy of an individual. Notwithstanding the assurances given by the UPA and the NDA dispensations on safety and security of the data so gathered, the fears and doubts of it being misused by the governments from time to time as a suppressive measure almost clouded this assurance and brought the issue to the centrestage and the resultant historic judgement.
True, in some measures Aadhaar intensified the privacy debate and triggered the Apex Court’s path-breaking judgement but this in itself has not addressed the basic issue of the scheme’s future. Will the Aadhaar card stand scrutiny of this judgement and stay put or will it have to go?
The nine-Judge Bench has though touched the Aadhaar issue peripherally through certain significant observations which gives an impression that the concept might not become redundant after this judgement. The issue in its entirety would be decided by another five-judge Bench which is already hearing this matter separately and so the main Bench confined itself to the much broader issue of privacy of a citizen.
The fact that the larger Bench directed the Government to provide a robust data protection regime after it recognised the challenge posed by sharing of personal data and private companies/firms collating them to create meta-data for commercial use, has raised hope, at least for the official quarters, that the Aadhaar regime has come on to stay with more stringent checks and balances. For records sake a Bill is already pending in Parliament for making a new law on data collection and usage which the government is presenting as a strong defence in support of Aadhaar before the relevant Bench.
However, the privacy rights judgement has while delving with the Aaadhar issue in the light of data collection, has kept the security of the country and social interests uppermost in mind. So, accordingly it has permitted the Government to collate data without being accused of privacy if it is done for national security or for effective distribution of scarce national recourses, food and other essential items.
It is abundantly clear from these observations that data collation as a concept, Aadhaar or otherwise, has come on to stay. What would be extent of its reach and, how and in what form does this concept finally takes shape would also depend as how effectively the Government presents its case before the three-judge Bench.
The privacy judgement, has however, set the contours which the Aadhaar Bench would have to follow. The judgement has set in motion a process to define afresh the relationship between Indian citizens and the State in the digital era, and it is sure to impact the outcome of several cases where various other aspects of Aadhaar have been challenged. Broadly speaking the petitioners are arguing that making the scheme mandatory violates rights to privacy and equality.
So, the three-judge Bench will in all probability have to address the question; whether the right to privacy becoming a fundamental right mean the Aadhaar programme is unconstitutional in its present form or will be shut down?
As stated above shutting down is not an option now. The Bench in all probabilities have to address issues pertaining to safety of data, whether Aadhaar could be mandatory or the extent of its usage as against the attempts of the present Government to make it all encompassing that runs the risk of misuse of data both by the Government as well as the vested interests elsewhere.
Interestingly, another Constitiution Bench of the Supreme Court led by the then Chief Justice of India Justice H L Dattu had in October, 2015 declared that the Aadhaar card was purely voluntary and could not be made mandatory. It has clarified that Aadhaar would remain in use until a larger Bench of the Apex Court decided whether the biometric authentication scheme violates the privacy of Indian citizens.
This is a different matter that the Supreme Court took two years to set up the larger Bench of five judges with a reference to examine whether Aadhaar violates the right to privacy or not. The coming hearings of this Bench have assumed significance on two counts; firstly the backdrop of the nine-judge Bench judgement on privacy and secondly that the current government through its Attorney General, first Mukul Rohtagi and lately K K Venugopal had argued that right to privacy was not a fundamental right. It is a different matter that the government had changed its stance during the course of privacy Bench hearings and subsequently after the historic judgement came to claim credit for privacy being declared a fundamental right.
The question also arises as to the impact of privacy judgement on Aadhaar. Most important, the judgement has clarified the fundamental nature of a ‘right to privacy’ in unambiguous terms. In fact, this will now become the foundation for the other five-judge Bench to decide issues related to Aadhaar.
Some legal experts feel that this judgment might give some momentum to the anti-Aadhaar camp, but the true test of a fundamental right to privacy will be when it is applied in specific legal cases. There are a number of upcoming cases out of which the Aadhaar hearings are one.
How will the right to privacy play out across the broader rights spectrum?
Aadhaar apart, the question also arises as to how will the right to privacy impact or affect other aspects related to broader rights of the citizens. This has been clarified by at least two members of the Bench, Justice J Chelameswar and Justice R F Nariman that how fundamental right to privacy will affect other issues such as Article 377 will depend on case-by-case basis.
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