Right to privacy must be safeguarded

Jaswant Kaur

The tussle over right to privacy is is still on in the Supreme Court of India. While the government has already completed 75 per cent of its work, debate on the existence of one of its premier schemes is still on. The Rs 500-crore project that the Unique Identification Authority of India (UIDAI) was entrusted with is in the news once again.  

The project is in its last leg and shall soon be complete, however, without the-much-needed authority of law, something the government should have endeavoured to obtain before its implementation. 

During 2011, the then UPA Government proposed a Bill called the National Identification of Authority of India Bill, 2010, which was rejected by the standing committee for various reasons. However, the government never thought of proposing a modified version of the Bill. The UIDAI, the authority in charge of the project, has been functioning through an executive order. Ever since, the government launched the scheme, questions about its legality were being raised. For, one thing, the government has no legal authority to record the biometric data of people. Another issue that has raised many eyebrows is that it is being issued to anyone, who is able to produce certain documents, giving legitimacy to “illegal immigrants”. 

Many, including former Justice K S Puttaswamy, approached the apex court pleading that the scheme should be scrapped as it violates the privacy of a person. The  Supreme Court came out with an interim order on September 23, 2013. While referring the matter to a constitution bench, the Court restrained the Centre from issuing Aadhaar cards to immigrants and linking it with benefits like provident fund etc. The government took a stand that it was not mandatory to obtain the card and whoever applied for it did it on will. 

While the project was a favourite of the UPA government, the BJP at that time had an opposite view and claimed that it would scrap it during its election campaign, it took a U-turn as soon as it came to power and made Aadhaar card mandatory for receiving various benefits, ranging from obtaining a LPG connection, registering a vehicle to signing up for a digital locker. There were many cases where the LPG agencies stopped supply in the absence of Aadhaar seeding and many did not receive subsidy even after its submission. The Supreme Court issued warnings time and again, latest being on March 16, 2015, reiterating the interim order that: “No person should be denied any benefits or ‘suffer’ for not having the card”. However, the order is largely unheeded. 

In July, while defending the government's stand on the  validity of Aadhaar, the government's chief lawyer — Attorney General Mukul Rohtagi, citing judgement in the case of M.P. Sharma and others vs Satish Chandra, dating back to 1954,  pleaded that no such fundamental right to privacy exists, which the government seems to have violated. Incidentally, the facts of the case, to which the AG referred to were entirely different. Here is a quick overview. A search warrant under section 96 (1) of the Code of Criminal procedure was issued against M.P. Sharma — the petitioner — who filed a case against the District Magistrate (who issued the warrant), claiming that his right to privacy was violated. The court held that the “power of search and seizure is an overriding power of the State,” aimed at promoting social security and emanates from a law which is not subject to any constitutional limitations. “There is no justification for importing fundamental right to privacy” into such cases by “some process of strained construction”. 

By no stretch of the imagination can it be construed from the above that there is no fundamental right to privacy. Of late, various courts have been issuing warnings against referring to a judgement or precedent in isolation with its overall context. It is unfortunate that the Attorney-General relied on a single sentence and related it to a case with entirely different facts. The Supreme Court in many cases thereafter recognised the existence of fundamental right to privacy in the Constitution. The case of Kharak Singh vs State of UP (1964) was one of the first cases to have recognised it. 

Kharak Singh, the petitioner in this case, was caught by the police in a dacoity case and was released in the absence of any evidence. The police put him under surveillance as per regulation 236 of the UP Police Regulations. While quashing the regulations as unconstitutional, the court held that the “right to privacy is not a guaranteed right under our Constitution”. However, “the said right is an essential ingredient of personal liberty.” 

It is a fact that the Constitution does not mention the right to privacy explicitly anywhere and even the fundamental right to speech and expression, life, movement etc., are subject to restrictions. However, subsequent cases like Maneka Gandhi vs Union of India (1978) held that “personal liberty” in Article 21 of the Constitution covers a variety of rights, including the right to privacy. The court also gave a new dimension to the Article, saying that the freedom of a person can be restricted by the State by prescribing a procedure that is not “unfair, arbitrary and whimsical” in nature. 

In a recent case, Ratan Tata approached the Supreme Court against publication of intercepts of his conversation with Neera Radia, pleading that since the government had recorded the information for a particular purpose, they should not be made public and his right to privacy must be respected. The court held that the tapes so far published only public issues. The conversation shall be available to everyone under the RTI Act as information, as it does not cause “unwarranted invasion of privacy” of the individual.

The RTI Act too establishes the existence of fundamental right to privacy. Until now, we have always assumed the existence of right to privacy implicitly as an addendum to other fundamental rights. The privacy issue has become the main concern in deciding the validity of Aadhaar cards. If privacy is not a fundamental right, the personal data of millions of people, who blindly believed the government without going into the complex legalities, is at huge risk. The UIDAI had employed private agencies to collect data, without proper procedures to safeguard it. These private agencies may sell data to spammers or marketers for a pittance, without violating any provision of law under which they may be held responsible. Considering the amount of money spent by the government on implementation of the scheme and the importance of Aadhaar for implementation of various welfare schemes, it shall not be prudent to scrap it. The court ought to direct the government to enact a law authorising collection of biometric data, specifying the purposes for which it can be used, laying down procedures for its safety and providing penal provisions to punish those who are found guilty of misusing or leaking it. ensure that Aadhaar is not reduced to another ID proof in the kitty.

The writer is Director Communications, Deepalaya, an NGO.