Oct 08, 2015, 08.19 AM | Source: Moneycontrol.com
A Supreme Court bench hearing the applicability of Aadhaar for essential services referred the matter to a larger Constitutional bench, and refused to provide interim relief for it and regulators seeking the use of the identification program.
A Supreme Court bench hearing the applicability of Aadhaar for essential services referred the matter to a larger Constitutional bench, and refused to provide interim relief for it and regulators seeking the use of the identification program.
The case involved the government and regulators such as RBI, SEBI, PFRDA, IRDA and TRAI seeking permission from the apex court to mandate the use of the biometric information-based identification program for telecom and financial services or for schemes such as Jan Dhan Yojana or MGNREGA.
Opponents of Aadhaar say mandating its use could be an invasion of privacy and expressed concerns over security of users' data. For now, the scope of the use of Aadhaar is in use only for PDS, LPG and kerosene.
The Aadhaar, operated by the Unique Identity Authority of India (UIDAI), is the world's largest biometric based idenfication system. The program was started by the erstwhile UPA government and has been given a push by the current government, which has expressed its wish to widen its scope to include other services. Arguing that there was no violation of privacy rights with respect to data collection, senior Supreme Court advocate Harish Salve said Aadhaar had enough safeguards in it. "The poorest of the poor get jeopardized because of the argument of right to privacy," he said.
Below is the verbatim transcript of Harish Salve's interview.
Menaka: It does seem that the government and the five regulators that had asked for the scope of the voluntary use of Aadhaar to be expanded has not found any positive decision from the Supreme Court today. What would your comment be on this?
A: My views on this are very clear. I think the government has put everybody in a bit of a spot by raising the issue of whether there is a right to privacy and getting it stuck in the larger constitutional question. This is an open and shut case which if it was argued on the premise that even if there is a right to privacy, there is no violation by collecting the basic data relating to private human being. If the unnecessary clouds created on the security aspect had been removed by the government effectively, I don't think the case would have really taken this kind of turn.
Menaka: It will now be referred to a large bench from which I understand it will be the constitutional bench which is yet to be setup from what I understand.
A: The first issue to be decided is, is there a right to privacy. That is the larger issue to be gone into which is a metaphysical constitutional issue. According to me it is a non-issue because in 2015 today your right to personal liberty doesn't include the right to privacy. It is a complete constitutional anachronism.
Menaka: It does seem those who oppose the mandatory use of Aadhaar without sufficient privacy and security safeguards are concerned about the lack of an explicit right to privacy in the constitution or any overarching privacy law. So, what is the way out of this?
A: There are so many rights which the Supreme Court has read into the constitution, right to privacy is one of them. I don't think the fact that there is no express right gives rise to any concern in any person superficially familiar with constitutional law. I have appeared in this case for the Delhi government and I personally would think that it is charitable use of language to call the challenger non-sense. If you go into the details of how the data is collected and how the data is maintained, I don't think there is any reason to suspect that there will be some sort of a looming big brother who is watching where you go and checking everything you do and stuff like that.
Menaka: So, the point you are making is that there ought not to be any privacy or security concerns because the safeguards are all in place?
A: Absolutely. Today you want to run a television channel, today you want to be an anchor in a television channel, don't you have to give all your particulars? If I want a driving licence, if I want a passport - if somebody wants money from the government, if somebody wants benefit from the government he is asked to give all his particulars. The government says if you want to go and live in the forest and want nothing to do with civil society so be it, go away.
Menaka: I don't think the argument here is against Aadhaar, I think the question simply was to we have enough safeguards in place to ensure that our biometric data which is retinal scans and finger prints are secure with the government and not with private agencies, that is the question?
A: All the people who worry about biometric data being stolen are those people who have assets which can be stolen. One is the abstract right to privacy. I don't know how your privacy is stolen by somebody knowing what your finger print looks like.
Menaka: I am not arguing this, I am just referring to the arguments made in court. The fear is about, for instance, this information being used in criminal investigations.
A: Constitutional law has never fossilised. Constitutional law evolves. The right to privacy is a notion which has evolved. 50-70 years back nobody thought right to privacy was a constitutional right. Today privacy is a constitutional right. In the same way when you say in today's world right to privacy in a time where there are satellites in the time when all of us want access to electronic media to all the stuff we use to social media where in any case you are completely exposed and to say that the poorest of the poor their right to privacy is in some way jeopardised if somebody gets to know what their fingerprint looks like, what are you going to do with those fingerprints. And if you use those fingerprints to commit a crime that is a matter which can happen in any case. Secondly what is a degree of safeguard which is available in the system. The safeguard is enormous. Today lower middle class people who have bank accounts all their biometrics are available with the bank. That system can be hacked. What about their right to privacy. My ultimate envision of privacy is by the income tax department who wants to know how much I earn on a day to day basis.
Menaka: I won't wear off into tax here but some of those concerns, made validly in fact, by counsel Shyam Divan were also heightened by the fact that Mr Mukul Rohatgi said that the right to privacy is not an explicit one, so there is some worry here.
A: When I appeared for the Gujarat Government in the last occasion, I told the court please assume that State of Gujarat has privacy at its highest. How is it being violated. If somebody stole, if you want subsidy from the government we need your biometrics to make sure you are the right guy.
Menaka: I am sure you would acknowledge that there are concerns and whether the government has done a good job of addressing those concerns adequately or not.
A: I have not heard a concern of any real genuine merit. I repeat, if there is somebody who wants to live in the forest he is welcome to live in the forest. But if somebody wants to live outside this system is welcome. The Aadhaar Card is not mandatory. We are not saying all citizens must queue up and give their prints. What we are saying is if you are going to have an interaction with the government the government is collecting your biometric data, so that if interaction is facilitated and leakage is prevented that is a larger social good.
Menaka: And yet the Supreme Court is not fully convinced by that argument hence has referred it to a constitutional bench.
A: Because a larger issue came up. Last time when it was being argued a very dark picture of what can happen was painted. Now the court had to be shown the other side of the picture as to what are the checks and safeguards. The second time when the case was argued instead of getting into the checks and safeguards of what exactly the Aadhaar Card is all about a huge constitutional issue was raised as to do we at all have a right to privacy. Now, that unsettled the whole situation. So, the court said, alright we will consider a larger question on we have a right to privacy.
Menaka: But for the immediate impact from what we can understand as of now (interrupted..)
A: Immediate impact is disaster.
Menaka: I am sure there are many on the other side who may not agree with you but I won't prolong that debate. As of now it can only be used for food (interrupted..)
A: You tell me when SEBI came there and said we want people to have an Aadhaar Card to work our accounts they said, sorry, no, you can't have it.
