Aadhaar and the right to privacy 

By ruling that Right to Privacy is a fundamental right, the nine-judge bench of the Supreme Court has set the stage for a three-judge bench to decide on the validity of Aadhaar. Aadhaar has been challenged by a clutch of 21 petitions, starting with the first one filed in 2012 by Justice KS Puttaswamy (retired) of the Karnataka High Court contending that collection of biometric data and linking it to various activities of citizens threatened their right to privacy.

The 91-year-old retired judge will now have his day in court, as will twenty others. By doing so, they have now placed under threat the slew of administrative reforms that were being contemplated using the Aadhaar platform. The name Aadhaar was chosen because it is envisaged to be the basis of a transparent new way of governance and compliance. While the provocation was Aadhaar, the issue before the Supreme Court was a much larger one and related to the fundamental character of Indian democracy.

The nine-men bench unequivocally rejected the State’s contention that privacy was an “elitist construct.” To argue that privacy was not a fundamental right was imbecilic enough, but to argue that it was an elitist construct reflects on the mentality of the lawyer-politicians at the helm of affairs. The eminent lawyers who argue in courts do so on the instructions of their clients.

The Aadhaar scheme is a huge and costly effort and if its potential is not exploited to the fullest, it will be a wasted effort with people having little to show except for a numerical identification tag. There is a huge space between just being a person with a number and to becoming just a number, as in some Orwellian nightmare. The government’s argument that there is no right to privacy was in its sheer brazenness and philosophical hollowness reminiscent of the argument by the late Niren De, the then attorney general, that during the Emergency even the right to life can be suspended.

It is arguments such as these that cause citizens to distrust the motives of the regime and think of the worst. Personal identification numbers linked to bank accounts and Income Tax are quite normal in many countries. In the US, the social security number travels with a person for all dealings with banks, employers and the Internal Revenue Service. It helps for clear and orderly transactions, business and tax collection. In India, where the biggest item in the budget after interest is subsidies, the Aadhaar was envisaged as the base of a system that would ensure that beneficiaries got their full benefits instead of being diddled of them by governmental and other intermediaries by direct transfer of benefits (DBT).

Remember Rajiv Gandhi’s famous comment that 85% of the funds meant for people didn’t get to them. Aadhaar was also envisaged to be the base of a system that, by being linked with bank accounts and Income Tax identification (PAN), would result in fewer escapes from the tax net and fewer transactions out of the banking system. But all that is now jeopardised and will have to be contested step-by-step and bit-by-bit. All because of the arrogant arguments advanced by the government. Now, there has been much hue and cry about biometric data stored with Aadhaar. Because biometric verification, in this case fingerprint and retinal scan, requires a person to be present, it actually adds a layer of dense security.

The usual types of identification like name, ID number, and password can be stolen, lost or forged. All these along with name and photographs are identification data that we routinely part with, whether for a visa or a passport or a driver’s licence or a bank account. Yet when it comes to giving our government this data, we are clearly uncomfortable. This is only a reflection of the deep distrust between people and their government.

The level of distrust also depends on class. Poor people are quite willing to part with these as they hope it will entitle them to long-denied benefits. Most rich people have much to hide and hence are wary about parting with personal data and zealously guard their privacy. It is this that possibly caused the government’s lawyers to try to dismiss the fears as an “elitist construct”, albeit quite stupidly. Privacy is like all other fundamental rights, circumscribed by the rights of others and the collective us. In a dictum almost a hundred years ago and that is still cited, Justice Oliver Wendell Holmes wrote what is perhaps the most quoted sentence in US Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

With this, he made it very clear that there were limits on the First Amendment that guaranteed free speech. Ironically, it was this dictum that was often misused to limit free speech. It was used to imprison anti-war activists during the two great wars.

This held till 1969 when the US Supreme Court vastly expanded the limits of free speech by ruling that even inflammatory speech is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” By ordering this, the court while retaining the limits on free speech also set limits on the state which had to establish that the act or acts are or would be harmful to society.

People who are opposed to the government having your personal information and the means to track your movements, money transfers and spending habits, fear the misuse of state powers, as we saw in the US after the Justice Holmes dictum. Privacy as a right is no less valuable than free speech. Privacy, in its simplest sense, is the right to be left alone. In the technologically advanced society we live in, unfortunately, you can only be left alone if you live on a deserted island like Robinson Crusoe. When we interact with the society and the institution of State, we are required to cede a part of our privacy.

The State and the myriad private and public institutions that make the society we now live in require information about a person. A public library will almost certainly require a proof of identity and residence before it can lend you a book. A car licensing authority might, in addition, need your blood group identity. This overarching presence of State and non-state entities regulates all aspects of social existence and bears upon the privacy of the individual.

As we move ahead in time and with technological changes cascading upon us with a pace we have never experienced before, the notion of privacy is still work in progress. We must hence constantly seek to redefine the limits of individual liberties whichever way the times demand. The three-judge bench of the Supreme Court thus has a bigger conundrum to resolve.