A nine-judge Constitutional bench today declared the right to privacy a fundamental right Photograph: (ANI)
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New Delhi, Delhi, India Aug 28, 2017, 10.51 AM (IST)
Prasanna S.
Since 2009, the Aadhaar project has been aiming to give each resident of India a unique twelve-digit identification number, called the Aadhaar/UID number. The Aadhaar project uses biometric technology for de-duplication i.e. the process of ensuring that no one person receives more than one UID number and for authentication of individuals against a central database.
The UID number was envisioned to be an identification mechanism to be used for multiple purposes and is envisioned to be the universal, ubiquitous and unique identifier. The stated purpose of this exercise was to plug leakages and to make subsidy and service delivery systems of the governments, both of the Centre as well as of the states, to be more efficient. This project, initially, operated under an executive notification dated 2009 and was recently given statutory status following the passage of Aadhaar Act, 2016 as a money bill, by-passing the Rajyasabha.
The authentication and de-duplication errors lead to widespread exclusion of people from access to such essentials.
The project is the first of its kind in India. It establishes and operates a central database of personal profiles, including residents’ biometrics and uses the same for authenticating and identifying individuals for transactions that require identification, such as receiving subsidised food under the public distribution system, receiving subsidised LPG cylinders, to cast vote during elections, and filing income tax returns as well as receiving state scholarship. Until the advent of Aadhaar, identity was established by individuals by producing identity documents such as voters’ id, driving license, PAN card etc.
When such a central identification system operates and controls a central database of personal profiles as well as capture and store transaction logs for each transaction, it naturally raises questions, inter alia, on the potential infringement individual privacy. Moreover, the system carries the danger of being used as a tool of mass surveillance by the State. The unreliability of the underlying technology also makes it an inappropriate tool to deliver life essentials, subsidised or otherwise, such as food, maternity benefits etc. Reportedly, the authentication and de-duplication errors lead to widespread exclusion of people from access to such essentials. Such questions were raised in writ petitions filed in the Supreme Court and High Courts.
During the hearings of this case, in August 2015, the then Attorney-General for India, Mukul Rohatgi told the Supreme Court that it is a settled legal position and there is no fundamental right to privacy under Indian Constitution. Such a stand by the government’s highest law officer justifiably received much criticism both from the general public as well as the legal fraternity. Particularly because there has been an unbroken line of nearly forty years of jurisprudence on the basis that privacy is a guaranteed fundamental right under Article 21 of the Constitution of India.
There has been an unbroken line of nearly forty years of jurisprudence on the basis that privacy is a guaranteed fundamental right under Article 21 of the Constitution of India.
After a lapse of more than two years and after multiple attempts by the petitioners to get the cases heard, the Supreme Court was able to constitute a 9-judge bench to hear arguments on this important constitutional question in July and August this year. This nine-judge bench delivered what would go down in the history of the Supreme Court as one of its most celebrated decisions in the history of Indian constitutional law. The decision was a unanimous one, reaffirming the status of privacy as a fundamental right that is guaranteed to all Indian citizens. Apart from its immediate effect on the Aadhaar litigation, this decision is going to have far reaching implications on many other laws and state actions such as Section 377 that criminalises consensual same-sex acts, beef ban laws, and opaque intelligence gathering operations that that government undertakes routinely with impunity.
For Aadhaar, however, this judgment raises existential questions. It's very idea is under attack following this judgment. An unlimited general purpose identification database, which is the essence of Aadhaar, is now constitutionally impermissible after this judgment that has drawn the conditions under which the right to privacy may be restricted in very narrow terms. Under the circumstance, Aadhaar may have to go.
Since 2009, the Aadhaar project has been aiming to give each resident of India a unique twelve-digit identification number, called the Aadhaar/UID number. The Aadhaar project uses biometric technology for de-duplication i.e. the process of ensuring that no one person receives more than one UID number and for authentication of individuals against a central database.
The UID number was envisioned to be an identification mechanism to be used for multiple purposes and is envisioned to be the universal, ubiquitous and unique identifier. The stated purpose of this exercise was to plug leakages and to make subsidy and service delivery systems of the governments, both of the Centre as well as of the states, to be more efficient. This project, initially, operated under an executive notification dated 2009 and was recently given statutory status following the passage of Aadhaar Act, 2016 as a money bill, by-passing the Rajyasabha.
The authentication and de-duplication errors lead to widespread exclusion of people from access to such essentials.
The project is the first of its kind in India. It establishes and operates a central database of personal profiles, including residents’ biometrics and uses the same for authenticating and identifying individuals for transactions that require identification, such as receiving subsidised food under the public distribution system, receiving subsidised LPG cylinders, to cast vote during elections, and filing income tax returns as well as receiving state scholarship. Until the advent of Aadhaar, identity was established by individuals by producing identity documents such as voters’ id, driving license, PAN card etc.
When such a central identification system operates and controls a central database of personal profiles as well as capture and store transaction logs for each transaction, it naturally raises questions, inter alia, on the potential infringement individual privacy. Moreover, the system carries the danger of being used as a tool of mass surveillance by the State. The unreliability of the underlying technology also makes it an inappropriate tool to deliver life essentials, subsidised or otherwise, such as food, maternity benefits etc. Reportedly, the authentication and de-duplication errors lead to widespread exclusion of people from access to such essentials. Such questions were raised in writ petitions filed in the Supreme Court and High Courts.
During the hearings of this case, in August 2015, the then Attorney-General for India, Mukul Rohatgi told the Supreme Court that it is a settled legal position and there is no fundamental right to privacy under Indian Constitution. Such a stand by the government’s highest law officer justifiably received much criticism both from the general public as well as the legal fraternity. Particularly because there has been an unbroken line of nearly forty years of jurisprudence on the basis that privacy is a guaranteed fundamental right under Article 21 of the Constitution of India.
There has been an unbroken line of nearly forty years of jurisprudence on the basis that privacy is a guaranteed fundamental right under Article 21 of the Constitution of India.
After a lapse of more than two years and after multiple attempts by the petitioners to get the cases heard, the Supreme Court was able to constitute a 9-judge bench to hear arguments on this important constitutional question in July and August this year. This nine-judge bench delivered what would go down in the history of the Supreme Court as one of its most celebrated decisions in the history of Indian constitutional law. The decision was a unanimous one, reaffirming the status of privacy as a fundamental right that is guaranteed to all Indian citizens. Apart from its immediate effect on the Aadhaar litigation, this decision is going to have far reaching implications on many other laws and state actions such as Section 377 that criminalises consensual same-sex acts, beef ban laws, and opaque intelligence gathering operations that that government undertakes routinely with impunity.
For Aadhaar, however, this judgment raises existential questions. It's very idea is under attack following this judgment. An unlimited general purpose identification database, which is the essence of Aadhaar, is now constitutionally impermissible after this judgment that has drawn the conditions under which the right to privacy may be restricted in very narrow terms. Under the circumstance, Aadhaar may have to go.
