Aadhaar and the Right to Privacy: Tracing the Evolution of Privacy Rights in India

Introduction

The notion of the right to privacy in India can be traced back to the 1800s, when British courts acknowledged its significance. Notably, the courts upheld the right to privacy for a pardanashin woman, emphasizing her entitlement to access her balcony without the intrusion of the neighborhood gaze.

Historical Roots of Privacy Rights

The concept of the right to privacy has deep historical roots, with British courts in the 1800s laying the foundation. This era saw the recognition of privacy rights, especially exemplified by a case where the privacy of a pardanashin woman was protected, allowing her freedom without the scrutiny of her neighbors.

Integration into Constitutional Framework

Over time, the jurisprudence of the right to privacy has evolved, finding its way into the constitutional fabric of India. The courts have interpreted and incorporated the right to privacy into Article 21 of the Indian Constitution, considering it an essential component of personal liberty.

Judicial Recognition

The Supreme Court of India has played a pivotal role in recognizing and affirming the right to privacy. Through its decisions, the court has emphasized that the right to privacy is integral to personal liberty, affirming its importance in the constitutional framework.

Aadhaar and Privacy Concerns

In contemporary times, the Aadhaar system has brought privacy concerns to the forefront. The intersection of technology and personal information has sparked debates about the balance between the need for identification systems and the protection of individual privacy.

The concept of the right to privacy has undergone significant evolution and transformation. Initially perceived as an inherent entitlement akin to freedom, the journey of the right to privacy has been shaped by various Supreme Court cases, leading to shifts in its conceptualization.

Early Notions and M.P. Sharma v. Satish Chandra

In its nascent stages, privacy was perceived as a given aspect of citizenship, paralleling the notion of freedom. The first significant Supreme Court ruling on privacy, M.P. Sharma v. Satish Chandra, asserted that privacy was not a fundamental right. The court, while addressing a case involving the search and seizure of Dalmia group documents, held that the framers of the Indian Constitution did not envision privacy as a fundamental aspect, drawing parallels with the U.S. Constitution’s 4th Amendment.

Kharak Singh v. State of Uttar Pradesh: A Continuation of Precedent

Nine years later, the issue resurfaced in Kharak Singh v. State of Uttar Pradesh. Here, Kharak Singh, accused of being a dacoit, underwent surveillance, secret picketing, and home visits. The court, following the M.P. Sharma pattern, reiterated that the right to privacy did not fall under fundamental rights. Noteworthy, however, was Justice Subba Rao’s dissenting opinion, asserting that while not explicitly declared, the right to privacy remained an essential element of personal liberty.

Govind v. State of Madhya Pradesh: Recognition of Fundamental Right

The turning point came in Govind v. State of Madhya Pradesh, where a smaller three-judge bench finally acknowledged the right to privacy as a fundamental right under Article 21 of the Constitution. Despite this recognition, the court emphasized that this right was not absolute and could be subject to interference through established legal procedures.

A significant milestone in the right to privacy saga was the Aadhaar case, which questioned the fundamental nature of this right. This case brought to the forefront the need for a definitive resolution, marking a crucial point in the ongoing evolution of privacy rights in India. The subsequent segment of this article will delve into the intricate details of this landmark case.

Aadhaar meaning

Aadhaar, initially introduced in December 2010 through the National Identification Authority of India Bill in the Rajya Sabha, is a unique twelve-digit identification number issued by the central government to Indian citizens. The Unique Identification Authority of India (UIDAI) is entrusted with the issuance and administration of Aadhaar.

It is crucial to recognize that Aadhaar primarily serves as an identification document. Managed by UIDAI, it captures and authenticates the demographic and biometric information of every resident Indian. It is imperative to note that Aadhaar is not intended to replace existing identification documents such as PAN cards, driving licenses, passports, and others. Rather, it functions as a unique identification number. Moreover, financial institutions, banks, and telecom companies can utilize Aadhaar as a Know Your Customer (KYC) verification method, enabling them to establish and maintain customer profiles.

Supreme Court’s Ruling on Aadhaar Mandate and Government Schemes

During the Supreme Court challenge to the Aadhaar system, the court emphasized that the government lacked the authority to enforce mandatory Aadhaar usage. The court, however, granted permission for its utilization in certain welfare schemes while delineating restrictions on its application. Notably, the government retained the right to employ Aadhaar for non-welfare schemes.

The government, subsequently, released a list specifying instances where Aadhaar is obligatory for both welfare and non-welfare programs. Some of these instances include:

• Household subsidiary eligibility for iron ore, limestone, and beedi workers necessitates Aadhaar.
• Individuals seeking benefits from welfare schemes under the Integrated Department of Horticulture and Janani Suraksha Yojana are mandated to possess Aadhaar.
• Aadhaar becomes mandatory for those aspiring to undergo training under the Integrated Child Development Services, a scheme governed by the Ministry of Women and Child Development.
• Availing benefits under the Grih Kalyan Kendra scheme requires Aadhaar.
• Financial support under the National Women Development Scheme is contingent upon possessing Aadhaar.
• This nuanced approach by the Supreme Court reflects the careful balancing act between ensuring individual privacy rights and allowing the government to leverage Aadhaar for specific targeted initiatives.

Inception and Timeline of the Aadhaar Case: A Chronological Overview

Birth of Aadhaar (2006-07)

The unique identification scheme for below poverty line families, known as Aadhaar, was conceptualized by the UPA government during 2006-07. Subsequently, the government approved the Aadhaar scheme along with its principles.

September 2009: UIDAI Formation

The Unique Identification Authority of India (UIDAI) was established by the central government to issue Aadhaar to citizens. Nandan M. Nilekani, the visionary behind Aadhaar, was designated as the inaugural chairman of UIDAI (Unique Identification Authority of India).

2012: Writ Petition by Justice K S Puttaswamy

Retired Justice K S Puttaswamy filed a writ petition in the Supreme Court challenging the government’s policy that made Aadhaar mandatory and its plans to link citizens’ biometric IDs with various government schemes. He argued that Aadhaar violates constitutional rights, including equality and the right to privacy.

September 23, 2013: Interim Order by Supreme Court

The Supreme Court issued an interim order stating that no citizen should suffer for not having an Aadhaar card, even when it is made mandatory by the government for specific benefits.

March 24, 2014: Order Against Mandatory Aadhaar

The Supreme Court passed another order, directing agencies to revoke any mandates that made Aadhaar compulsory for availing benefits.

February-March 2016: Mobile Number Linkage Mandate

Based on the Supreme Court’s statement in the Lokniti Foundation v. Union of India case, the Modi government interpreted it to make the linkage of mobile numbers with Aadhaar mandatory.

June 2016: Aadhaar Linkage Guidelines for Domicile and Caste Certificates

The central government issued guidelines instructing states to link Aadhaar with domicile and caste certificates.

September 2017: Constitutional Bench Hearing and Striking Down Mandates

A constitutional bench began the hearing on the validity of Aadhaar and simultaneously struck down the provision that mandated linking Aadhaar with bank accounts, school admissions, and mobile phones.

January 2018: Resumption of Aadhaar Case Hearing

A five-judge bench resumed the hearing on the Aadhaar case.

May 10, 2018: Conclusion of Final Hearing and Verdict Reservation

The Supreme Court completed the final hearing on the prolonged Aadhaar case and reserved its verdict on May 10, 2018.

Final Verdict on Aadhaar by the Supreme Court

In its conclusive ruling on Aadhaar, the Supreme Court affirmed the validity of the Aadhaar Act, asserting that it does not infringe upon the right to privacy when an individual consents to share their biometric data. However, the court prohibited private companies from utilizing Aadhaar cards for KYC authentication. Simultaneously, the apex court affirmed that Aadhaar would remain essential for various purposes, including PAN card issuance and filing income tax returns.

Examining key aspects of the judgment in the case of K.S. Puttaswamy v. Union of India provides a nuanced understanding of the court’s stance on privacy rights related to Aadhaar.

In the case, a constitutional bench, led by Chief Justice Deepak Misra, mandated Aadhaar for filing income tax returns and obtaining a PAN card. Therefore, individuals seeking PAN cards or filing tax returns are obliged to link Aadhaar.

The apex court exempted students appearing for CBSE, NEET, and UGC exams from the Aadhaar requirement. Additionally, schools are barred from demanding Aadhaar for admission purposes.

For accessing government welfare schemes and subsidies designed to uplift the underprivileged, Aadhaar remains a prerequisite, as emphasized by the court.

The Supreme Court took a decisive step by striking down Section 57 of the Aadhaar Act, rendering it unconstitutional. Consequently, private entities and companies are barred from seeking Aadhaar details from their employees.

In its verdict, the top court also invalidated the National Security Exception under the Aadhaar Act, limiting government access to Aadhaar data to bolster individual privacy indirectly.

A special exemption was granted to children, with the court asserting that no child should be deprived of government schemes for lacking an Aadhaar. The judgment thus provides a balanced perspective on the use of Aadhaar, acknowledging its importance in specific contexts while safeguarding individual privacy and rights.

Explanation of the Right to Privacy

With the implementation of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act of 2016, there arose a necessity for the collection and utilization of personal data from citizens. The government justified this initiative by asserting that the collection of personal data and enrollment under the Aadhaar Act would significantly benefit millions of impoverished individuals, allowing them direct access to education, public benefits, subsidies, food, housing, and other fundamental amenities. The government contended that Aadhaar would serve as a remedy to eradicate prevalent societal issues like corruption, money laundering, and terror funding.

Contrary to the government’s stance, the Supreme Court expressed concerns about Aadhaar, drawing attention to the potential risks of private entities and service providers quickly gaining access to individuals’ personal information, leading to potential dire consequences.

Recent developments indicate the incorporation of personal data collection in various national schemes, including Aadhaar, DNA profiling, Crime and Criminal Tracking Network and System (CCTNS), National Intelligence Grid- NATGRID, Rashtriya Swasthya Bima Yojana- RSBY, Brain Mapping, Reproductive Rights of Women, and Privileged Communication. These initiatives involve gathering bodily samples, fingerprints, iris scans, and the imperative electronic storage of such data, raising concerns about the possibility of data leaks.

In response to the Supreme Court’s repeated inquiries about plans for a robust mechanism to prevent data breaches, the government stated that a committee of experts, led by former Supreme Court judge B N Srikrishna, had been formed on July 31, 2017. This committee is tasked with identifying key data protection issues and has proposed a draft data protection bill.

Various Judges’ Opinions in the Aadhaar Case

The much-debated Aadhaar case was adjudicated by a five-judge Supreme Court bench, which included the then Chief Justice of India Deepak Misra, along with Justice A K Sikri, Justice Ashok Bhushan, Justice A M Khanwilkar, and Justice D Y Chandrachud. This constitutional bench, while upholding the overall validity of Aadhaar, did make exceptions for certain provisions related to the disclosure of personal data, the utilization of the Aadhaar ecosystem by private companies, and the recognition of offenses. The majority opinion was presented by Deepak Misra, A K Sikri, and Khanwilkar, while Justice Chandrachud and Ashok Bhushan provided dissenting opinions.

Majority Opinion by Deepak Misra, A.K. Sikri, and Khanwilkar in the Aadhaar Case

When considering the acquisition of an Aadhaar card, the bench clarified that once biometric information is received and Aadhaar is issued, obtaining a duplicate card is not possible. This is because the biometric data remains secure with the UIDAI after issuance, and any attempt at re-enrollment would result in an immediate match with existing information, leading to rejection. The bench emphasized that this uniqueness is the reason Aadhaar is named “Unique Identification” (UID).

In assessing the law’s compliance with the right to privacy, the court deliberated on whether to apply the ‘strict scrutiny’ standard or the ‘just, fair, and reasonable’ standard. For the Aadhaar judgment, the court opted for the ‘just, fair, and reasonable’ test, aligning with the reasonable restrictions permitted under Article 19 of the Indian Constitution.

Addressing concerns about the creation of a Surveillance State, the court dismissed arguments suggesting that Aadhaar contributes to such a state. The court highlighted that during Aadhaar enrollment, minimal biometric data, such as iris scans and fingerprints, is collected, while information like location, purpose, and transaction details is not. The court affirmed that the collected information remains in silos, with no merging permitted.

Following a comprehensive discussion on the right to privacy, the bench asserted that not all aspects of an individual’s life fall under the purview of the right to privacy. Only those matters with a reasonable expectation of privacy are protected under Article 21 of the Indian Constitution.

To evaluate the reasonableness of the invasion of privacy in the context of Aadhaar, the court introduced a triple test. It concluded that Aadhaar is supported by the Aadhaar Act, emphasizing that the act serves a legitimate state aim, as evident from the act’s introduction and the statement of objects and reasons, which reflect the act’s purpose.

Right to Privacy Involved Three Key Tests

The Bench’s Conclusion on the Right to Privacy Involved Three Key Tests:

Existence of Law

The presence of a legal framework was deemed essential. For actions to be justified, they needed to be backed by a relevant law.

Proportionality Test

Acts were required to pass the test of proportionality, ensuring that any intrusion into privacy was balanced and proportionate to the legitimate objectives pursued.

Legitimate State Interest

The court emphasized the necessity of a legitimate state interest, underscoring that any invasion of privacy must align with the broader public interest and legitimate objectives of the state.

The final judgment on Aadhaar saw the bench affirming that all three tests were successfully satisfied, providing a comprehensive legal foundation, ensuring proportionate actions, and validating the presence of a legitimate state interest.

“Fiery Dissent by Justice D.Y. Chandrachud: Declaring Aadhaar Act Unconstitutional

While the majority of the bench upheld the constitutional validity of the Aadhaar Act, Justice Chandrachud fervently dissented, asserting that Aadhaar is inherently unconstitutional.

Expressing his strong dissent, Justice Chandrachud emphasized that constitutional guarantees must not be compromised by the fluctuations of technology.

Justice Chandrachud’s dissent commenced with a critique of the legislative process surrounding Aadhaar. While the majority aligned with Justice Sikri’s view that Aadhaar was unobjectionable, Justice Chandrachud condemned its introduction, labeling it a ‘Fraud on the Constitution.’

Another critical aspect of Justice Chandrachud’s dissent was the classification of Aadhaar as a money bill. He argued that passing Aadhaar as a money bill contradicted the principles of the Indian Constitution. Additionally, he suggested that the Speaker of the Lok Sabha’s decision to allow Aadhaar as a money bill should be subject to judicial review.

Though Justice Chandrachud concurred with the majority regarding the legitimacy of the Aadhaar Act, he contended that the act lacked a robust mechanism for protecting citizens’ personal information.

He raised concerns about private entities accessing individual data, asserting that this could lead to profiling and the identification of citizens’ political views. Justice Chandrachud advocated for data to be under the control of individuals, emphasizing its paramount importance to them. Failure to do so, he argued, could result in detrimental consequences.

Lastly, Justice Chandrachud acknowledged the practical necessity of Aadhaar in India but maintained that its mandatory nature violated Article 14 of the Indian Constitution. He cautioned against the potential infringement of the right to privacy if Aadhaar were linked with every other database.

Is Aadhaar Facing Uncertainty?

Challenges in Facilitating Government Schemes:

While initially seen as a tool to empower the rural and marginalized populations, Aadhaar’s impact on accessing entitlements and government schemes has become a matter of concern. Rather than simplifying the process, it appears to have introduced additional complexities.

Mobile Number Linkage and Questions Raised:

Approximately 500 million subscribers had linked Aadhaar with their mobile numbers by the end of October 2017. The government’s insistence on linking Aadhaar with telecom services raises questions about the original purpose of Aadhaar. Why force people to link mobile numbers, and who bears responsibility for this?

Broader Concerns about Data Aggregation:

Linking Aadhaar to various personal details such as bank accounts and health insurance raises concerns about the creation of digital profiles. The aggregation of data without adequate privacy protection poses risks of misuse.

Security Issues with e-Aadhaar Password:

The new e-Aadhaar password, a combination of the first four letters of a person’s name and their year of birth, raises security concerns. This easily guessable password could be known to friends, family, acquaintances, or even strangers, compromising individuals’ privacy.

Implementation Challenges in Karnataka:

Months after the implementation of the Aadhaar Act, the Karnataka government acknowledged issues with Aadhaar card issuance. Many departments lacked the knowledge of how to integrate Aadhaar into their databases, highlighting implementation challenges.

Complaints of Mismatched Aadhaars and Denial of Services:

Throughout the state, complaints surfaced regarding discrepancies in the number of Aadhaar’s issued, surpassing the total population. There were also reports of genuine beneficiaries being denied services, leading to concerns about the system’s accuracy.

Activists’ Warnings about Aadhaar Act in Karnataka:

Activists warned that the introduction of the Karnataka Aadhaar Act could exacerbate cases where genuine beneficiaries are unjustly denied services, further highlighting the potential drawbacks of Aadhaar implementation.

Conclusion

After a comprehensive examination of the Aadhaar case, it is evident that the case has undergone various transformations since its inception. Numerous issues, such as the protection of citizens, serving justice, and upholding privacy, were scrutinized throughout its course.

Diverse interpretations of the Aadhaar case arise, reflecting differing perspectives among individuals. This divergence was evident even among the five-judge bench, where three judges upheld the constitutional validity of Aadhaar, while Justice Chandrachud strongly dissented, presenting arguments contrary to the majority judgment.

Moving forward, addressing the existing loopholes in the Aadhaar case is imperative to prevent potential threats to individuals’ right to privacy. An assessment is required to determine whether Aadhaar is fulfilling its intended purpose, and if not, mechanisms must be adopted to align it with its original objectives. A meticulous review, considering both the strengths and weaknesses, is crucial to rectify faults and mitigate negative aspects, ensuring Aadhaar’s alignment with its true purpose.

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