Mandatory Aadhaar linkage: violation of right to privacy

A nine-judge Supreme Court (SC) bench, headed by Chief Justice J S Khehar, has just finished hearing arguments and reserved its verdict on an issue of critical importance whether ‘individual privacy’ is fundamental and inviolable right like other fundamental rights under the Constitution.

In deciding the matter, the apex court will have to revisit two of its previous judgements in M P Sharma case (1954) and Kharak Singh case (1962) wherein it had not held ‘right to privacy’ as fundamental right. Taking advantage of this, the government has made linkage of Aadhaar card mandatory for its various welfare schemes, filing of income tax returns, mobile phone and permanent account number (PAN) by amending the Income-Tax Act through the Finance Bill, 2017.

There have been multiple petitions before the SC challenging compulsory linkage of Aadhaar for filing income tax returns, obtaining and retaining PAN card and bank account numbers. It was shocking beyond words when former attorney general of India Mukul Rohatgi informed the SC that citizens didn’t have an absolute right even over their body, leave alone privacy, to say the least.

But once 12-digit UIDAI number is linked to income tax returns, PAN card and people’s bank accounts it will be easier for the income tax department to scan your private/personal details such as the bank balance, spending ways and remittances from your offspring abroad which are purely private nature of information.

Considering the complex and contenti­ous nature of the issue in question, the apex court has divided it into two parts. First, it will decide whether ‘right to privacy’ is citizens’ fundamental right or not. If the SC upholds it as their fundamental right rever­sing two of its earlier judgements on the subject, another bench will take up the issue of mandatory Aadhaar linkage with social welfare schemes, income-tax returns, pan numbers, mobile phones and bank accounts for determining its legal validity.

Initially, the system was introduced to aid welfare transfers by eliminating impersonation and pilferage but later on its extensive usage came to be dictating each and every aspect of citizen’s life. The fact of the matter is that Aadhaar seeding of a breathtaking sweep of databases is without precedent anywhere else in the world. This is not to deny its potential utility in delivering welfare benefits but its propensity to become a weapon in the hands of a surveillance state cannot be altogether ruled out.

Those brushing aside the privacy argument also suggest that with over 100 crore citizens already having submitted their biometric details without any reservations, it is only a select few who are blowing the issue out of proportion. This view smacks of a ‘might is right’ mindset, which is antithetical to safeguarding individual liberties in a democratic set up governed by rule of law.

Undoubtedly, there is no specific mention of “right to privacy” as such in the constitution. However, it does not mean that this reason is valid enough to deprive people of their privacy which in itself is inherent in “right to life and liberty” under Article 21 of the Constitution. Suffice it to say that “press freedom” nowhere finds any mention separately in the constitution, but it is covered under the “freedom of speech and expression” (Article 19) as fundamental right.

Similarly, “right to speedy trial” finds no explicit place in the list of fundamental rights, yet the SC has included it within the ambit of Article 21 through its creative interpretation. In Maneka Gandhi’s case (1978), the apex court opened up a new dimension that while prescribing a procedure for depriving a person of his life and personal liberty, it must provide a procedure prescribed by such law which is reasonable, fair and just, and not arbitrary, whimsical and fanciful.

It is now settled that the validity of any law coming under Article 21 must be tested also with reference to Articles 14 and 19. Also, “right to life” enshrined in Article 21 means something more than survival of animal existence. It would include all those aspects of life which go to make a man’s life meaningful, complete and worth living.

Misplaced reliance
The Union government’s sheer reliance on two old judgements is totally misplaced as they simply deal with a few minor aspects of privacy. While the former dealt with state’s power of search and seizure, the latter only upheld rules that allowed distanced surveillance but struck down other provisions which allowed the police nightly visits to intrude into a history sheeter’s house without the man being accused of any fresh crime.

It is clear from above that the ‘right to privacy’ was not rejected in toto by the highest court. There is also an unbroken chain of its judgements by smaller benches which recognise right to privacy as an essential component of right to life.

Over and above, the government itself had taken a similar view in the WhatsApp case arguing that personal data, and consequently privacy, is an extension of life and personal liberty guaranteed under Article 21 of the Constitution. It firmly maintained this position till 2014 in its counter-affidavits filed in Aadhaar petitions before the SC.

The Centre’s arguments in the criminal defamation case too were grounded on the fundamental ‘right to privacy’ to save Section 499 of the IPC that provided for defamation as a criminal offence from being struck down as being in violation of the right to free expression and free speech.

Irrespective of what the SC decides, one thing that needs to be underlined is an individual’s right to choose whether or not he wants the state’s help. Moreover, there are many instances, such as the call to make Aadhaar mandatory for filing tax returns, obtaining and retaining PAN cards and bank accounts, where the overpowered state is clearly overreaching and thus imperilling civil liberties thereby forcing “we the people” to give up their free choice.

(The writer is an advocate at Delhi High Court and Supreme Court)