“only when we believe that nobody else is watching us do we feel free — safe — to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves… for that reason, it is in the realm of Privacy where creativity, dissent, and challenges to orthodoxy germinate. A society in which everyone knows they can be watched by the state — where the private realm is effectively eliminated — is one in which those attributes are lost, at both the societal and the individual level.”
“Important Alert! As per Government’s directive, it is mandatory to link Aadhaar to your xxxx Mobile. To avoid disconnection of services on your number, please walk-in to the nearest xxxx Store today.”
Well it is not unusual to receive such notifications for mobile services, banking services, filing of income tax returns, etc. We are warned of disconnection or discontinuance of services if we fail to link them to Aadhaar. What about those who still are not convinced with the idea of Aadhaar and the entire concept of parting with their biometrics? They may endeavour to wait till the Apex Court upholds the validity of Aadhar or invalidates the scheme.
In either of the cases the impact will be very minimal because by now most of us have an Aadhar and among them too most of them have linked their Aadhar to various services. The reason being that it is difficult or one may say impossible to enjoy the abovementioned services without linking Aadhar. The ones who were not convinced by the scheme too have given up the idea of playing the role of activists and not linking, instead they have chosen the hassle-free way out of this issue which is to simply link our Aadhar to various basic services and part with our personal data.
This article seeks to analyse the past and present scenario of Aadhaar and the Judgement on Right to Privacy and elucidates the Privacy concerns with respect to Aadhaar. The evolution of the world’s largest biometric database which is Aadhaar and its poor implementation shall be discussed in Part II of the Article. On the 24th of August, a nine-judge bench of the Hon’ble Supreme Court delivered its verdict in Justice K.S. Puttaswamy vs Union of India (Privacy Judgment). This judgment shall be discussed in Part III of the article. Part IV shall be dealing with Privacy. Part V shall see Aadhaar through the lens of Privacy with the help of an illustration. Part VI shall be Conclusion with thoughts on the mandatory nature of Aadhaar.
Aadhaar, which means “foundation”, started out as a voluntary programme to help tackle benefit fraud.  By choosing a word which is a synonymous to “foundation”, the Government perceives that the very foundation of any citizen or, in other words, the only identity of a citizen, is the 12 digit code.
Unique Identification Authority of India (UIDAI), established in the Planning Commission vide a notification of the Government of India dated 28 January, 2009, is responsible for the processes of enrolment and authentication and such other functions as may be assigned to it under the Aadhaar Act 2016. Government appointed Infosys co-founder Nandan Nilekani as the first chairman of UIDAI, with the rank and status of a Cabinet Minister. In April 2010, the logo and the brand name Aadhaar was launched by Nilekani.
On 26 November 2012, Prime Minister Manmohan Singh launched an Aadhaar-linked direct benefit transfer scheme. The project aimed to eliminate leakages in the system by directly transferring the money to the bank account of the recipient. Prime Minister Mr. Narendra Modi strongly criticised the Aadhar scheme by tweeting about the security threat it can pose, in 2014, days before NDA got elected. In an article “NDA celebrates a billion Aadhaar cards – but Modi’s old tweet haunts” , the inconsistency in the views of our Prime Minister with the change of the ruling party or time are categorically stated.
In late 2014, Prime Minister Mr. Narendra Modi announced that his Government would retain the project and asked officials to look into linking the project with passports. On 18 June 2015, in a high-level review meeting on the progress of the UID project and DBT scheme, Prime Minister Narendra Modi asked the officials to accelerate the delivery of benefits and expand the applications of the Aadhaar (UID) platform. During the Budget presentation on 29 February 2016, Finance Minister Arun Jaitley announced that a bill will be introduced within a week to provide legislative support to the Aadhaar. On 3 March 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was introduced in the Parliament as a Money Bill by Mr. Jaitley. The Bill was passed and on 26 March 2016, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereunder referred to as Act) was notified in the Gazette of India.
Section 3 of the Act provides that every resident shall be entitled (emphasis supplied) to obtain an Aadhaar number by submitting his demographic and biometric information. Interestingly this entitlement is becoming a mandatory identity proof and may be in some cases a catalyst to help us enjoy some pre-existing entitlements. It is required to register at certain schools, by some employees, for welfare schemes and even to buy a new Jio smartphone, and there’s talk that it may become needed for stock trading, airport clearance and many other walks of life.  It’s difficult to understand why mobile phones, operating bank accounts and other services may be enjoyed peacefully only if you have linked your Aadhaar, such that these services become like a welfare scheme.
Something worth noting is that as per Section 3 clause 2 of the Act,the Aadhaar enrolling agency has to inform the individual the following details at the time of enrolment
- the manner in which the information shall be used;
- the nature of recipients with whom the information is intended to be shared during authentication; and
- the existence of a Right to access information, the procedure for making requests for such access, and details of the person or department in-charge to whom such requests can be made.
But how many of us have been informed of the above mentioned three points? Though one may say the scheme was launched with a bona fide objective, the implementation has failed to fulfil the same. These are news lines like, Government had revealed it has deactivated more than 81 lakh Aadhaar cards suspecting them of being fake. Personal data details of family of M S Dhoni, who was then the captain of the Indian cricket team have been leaked by Aadhaar Agency. Denied food because she did not have Aadhaar-linked ration card, Jharkhand girl dies of starvation. In August a Punjab government website had exposed the Aadhaar numbers of over 20,000 people who had applied for low-cost housing in Ludhiana and Jagraon. The UIDAI holds out AP and Telangana as shining examples of Aadhaar’s efficiency when backed by the Right network and infrastructure. But for the lakhs who have been denied their Rights due to the technological glitch in Aadhaar implementation, it has been nothing more than a failed experiment.
The news about leaking of data of citizens on a website, poses petrifying questions for all of us who have enrolled under the scheme. Well, some might want to withdraw their enrolment, but as expected there is no provision under the Act for the same.
It was in November 2012 that the Hon’ble Supreme Court admitted a PIL filed by retired Karnataka High Court Judge KS Puttaswamy and advocate Parvesh Khanna, questioning the Government’s decision to issue Aadhaar even as the National Identification Authority of India Bill, 2010 was pending before the Rajya Sabha since December 3, 2010. They argued that there was no legislative backing for the scheme. The PIL argued that linking the Aadhaar number with food security, LPG subsidy, the Employees’ Provident Fund and other direct benefit transfers made the enrolment mandatory, thereby falsifying the Government’s claim that it was voluntary.
A Bench of three judges of the Hon’ble Supreme Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union Government noted in its order dated 11 August 2015 that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the Right to Privacy. The Attorney General for India urged that the existence of a fundamental Right of Privacy is in doubt in view of two decisions: the first – in M P Sharma v Satish Chandra, District Magistrate, Delhi (“M P Sharma”) was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh (“Kharak Singh”) was rendered by a Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the Right to Privacy.
The Right to Privacy has been held to be a constitutionally protected Fundamental Right in a few cases. Those decisions include: Gobind v State of Madhya Pradesh (“Gobind”), R Rajagopal v State of Tamil Nadu (“Rajagopal”) and People’s Union for Civil Liberties v Union of India (“PUCL”). These subsequent decisions which affirmed the existence of a constitutionally protected Right of Privacy, were rendered by Benches of a strength smaller than those in M P Sharma and Kharak Singh. The Bench of three learned judges observed in its order dated 11 August 2015:
“Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the Right to Privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”
On 18 July 2017, a Constitution Bench presided over by the learned Chief Justice considered it appropriate that the issue be resolved by a Bench of nine judges. The order of the Constitution Bench reads thus:
“During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental Right of Privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. – 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors. – 1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental Right, is the correct expression of the constitutional position. Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench. List these matters before the Nine- Judge Constitution Bench on 19.07.2017.”
In Kharak Singh the Court at page 351 observed, “… Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the Right of Privacy is not a guaranteed Right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which Privacy is invaded is not an infringement of a fundamental Right guaranteed by Part III.”
On 24th August 2017 a nine-judge bench of the Hon’ble Supreme Court categorically held that the Right to Privacy is a Fundamental Right enshrined under Article 21 and Part III of the Constitution of India. It will be accorded the same protection as other Fundamental Rights under Chapter III of the Constitution. Puttaswamy is undoubtedly a historic and landmark verdict of our times, and one of the most important civil Rights judgments delivered by the Hon’ble Supreme Court in its history. The impact of this judgment is far reaching and it touches upon various issues spanning from LGBT Rights, data collection, data protection, marital rape, state surveillance, legality of food bans and other issues which cannot be foreseen or be anticipated now.
Six out of the nine judges wrote separate judgments. All of them drawing the same conclusion but with different reasoning and detailed analysis of the Right to Privacy. Thus these six separate judgments form the 547 pages landmark judgment. The operative order which is a page-long statement at the end of the verdict, signed by all the nine judges, is legally binding and is the law of the land.
Justice J Chelameswar described the exercise as exploring “the Constitution’s dark matter”. Just as it was exposited in Kesavananda Bharati vs State of Kerala that the Constitution had a basic structure which was beyond the power of amendment, through the Privacy Judgment, the Court has discovered another gem—that the Right to Privacy is an inalienable part of the Right to life and personal liberty (Article 21). As the Right to Privacy is called a gem by the apex court, how far can the sanctity of this gem be preserved in light of the Aadhaar and the surrounding issues needs careful consideration.
The principle of informed consent, which was affirmed by J. Chandrachud in the Judgment, is the principle that individuals retain Privacy Rights even over information which is voluntarily handed over to third parties, which means that consent is not a one-time waiver of your Right to control your personal information, but must extend to each and every distinct use of that information, notwithstanding the fact that you have consented to the State collecting it from you. Voluntarily handing over personal information to the State does not give it a carte blanche to use for whatever purposes it deems fit – but rather, the State is constitutionally bound to take the individual’s informed consent every time the State uses the information for a purpose other than the one it was stipulated for.
While holding that Privacy is not an absolute Right, Justice Chandrachud laid down that invasion of Privacy requires a law that meets the requirement of
(i) Legality, which postulates the existence of law;
(ii) Need, defined in terms of a legitimate state aim; and
(iii) Proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.
Though the Court was not answering the Aadhaar question, it seemed to touch upon it and then move back to Privacy. This is seen in Paragraph 181 of Justice Chandrachud’s opinion, where he discusses the third requirement which is proportionality ensuring nexus between objects and the means adopted,
“Apart from national security, the state may have justifiable reasons for the collection and storage of data. In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes.”
It is almost as if the Union’s position on the legitimacy of Aadhaar’s aims has been upheld, despite the fact that the constitutionality of the Aadhaar scheme was not in question before the Court in this case.
After the Hon’ble Supreme Court Judgment has elevated the Right to Privacy to the status of a Fundamental Right the pertinent question which any person who has not read the 547 pages Judgment would ask is, what is Privacy? One of the arguments which the Government raised against recognizing Right to Privacy as a Fundamental Right is that it is too ambiguous a concept to be recognized judicially. The submission of the government is that the Court cannot recognize a juristic concept which is so vague and uncertain that it fails to withstand constitutional scrutiny. Hence defining Privacy becomes all the more important in the present context.
Privacy is a concomitant of the Right of the individual to exercise control over his or her personality. ‘Privacy’ is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions”.The Right to be in this condition has been described as ‘the Right to be let alone’. Privacy is thus one of those Rights “instrumentally required if one is to enjoy” Rights specified and enumerated in the constitutional text.
Privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by Rights bearers before constitutional courts, a Right to Privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. Privacy is more than merely a derivative constitutional Right. It is the necessary and unavoidable logical entailment of Rights guaranteed in the text of the constitution.
The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the Rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental Rights because the fundamental Rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.
5. AADHAAR THROUGH LENS OF PRIVACY
Privacy allows people a space where they can refuse to conform. And it is in that space where liberty flourishes
The decision to part with one’s personal data must be left to be decided by the individual himself. If we say that Aadhaar is a violation of our Right to Privacy, the State must provide a reasonable justification to do so, or at least provide an option to withdraw from the scheme.
Privacy concerns have been raised for a very long time since inception of this scheme, and have aggravated with the poor implementation of the scheme as discussed above. While the Government is keen on linking everything Right from your mobile number to your ration card to Aadhaar, it is not difficult to create profiles of individuals. The PAN card, mobile number, ration card, bank account provide enough information for creating a profile of any person. Recently there has been a suggestion to link Aadhaar to medical services so that the Government is well informed of for the medical needs and can then provide them at subsidised rates. The question which would come to one’s mind is that, have the benefits of welfare schemes for which the Aadhaar was brought, been reaching the stakeholders? If yes, then, we need the proof for the same and if not, then why should we as citizens co-operate and link our services to Aadhaar when the scheme has been unsuccessful in its primary objective?
The concerns raised by Privacy Advocates can be better understood with the help of the following illustration.
The post-Aadhaar scenario in 2020 India: A man orders a burger overthe telephone. He is asked for his Aadhaar number first. He then orders a jumbo burger, only to be reminded by the attendant about his high blood pressure and cholesterol levels (thanks to his Aadhaar history visible to everybody “on the system”) and is advised to order the low-fat mini burger instead, based on his recent search history on low fat burgers. As if this isn’t enough, the burger guy refuses a card payment, citing the man’s maxed-out credit cards, advises against ATM withdrawal owing to his massive overdraft and even decides to hold off the free cake offer given his dire health situation. When the man turns livid, he is told to mind his language, given that in 2015 he was already imprisoned for verbally abusing a policeman!
If Aadhaar would have been a voluntary scheme a citizen who wishes to enjoy benefits of a welfare scheme under Aadhaar would enrol under it. If a citizen wishes to have an additional identity card then he would enrol under it. But if a citizen does not agree to share his bio metrics in exchange of any number of benefits, then where is he expected to go? Thus making the scheme a voluntary one wouldn’t have raised so many issues as it has due to its mandatory nature.
The Apex Court also ruled that like other Fundamental Rights, the Right to Privacy was not absolute and any encroachment will have to withstand the touchstone of permissible restrictions. India’s Information Technology (Amendment) Act, 2008, allowed the Government to ‘intercept, monitor, or decrypt’ any information ‘generated, transmitted, received, or stored in any computer resource’ in the interest of ‘sovereignty or integrity of India [emphasis supplied], defence of India, security of the State, friendly relations with foreign States, or public order or for preventing incitement to the commission of any cognizable offence relating to the above or for investigation of any offence. We understand that the Aadhaar scheme would ideally fall into the exception of national interests, but where do you draw a line in order to determine what falls under the penumbra of national interest? Though it is inherently a subjective aspect, it needs to be looked into detail.
As expected by many, the information made available to the Government would be used for the purpose as laid down in the Act and thus it would remain secured. But contrary to these expectations the Enactment has been drafted in such a way as to provide the power to the Aadhaar Agency to share your personal data on payment of fees. Far from ensuring that your personal information is secure, the UIDAI is selling it (or is, at least, authorised to sell it) to anyone who has your number and cares to pay the fees. Section 8 of the Act provides for it.
While the Privacy judgement is a cause for celebration, its full benefit will only come when it is applied to actual state actions that undermine Privacy. Adherence to constitutional principle is not an academic exercise, but requires a prompt protection of real Rights and liberties. Judicial action should spring at moments when the state oversteps onto the citizen. Few would dispute that determinations on Privacy would be of greater benefit when the Hon’ble Supreme Court protects us with foresight rather than retrospect.
Under the Constitution of India the State is duty bound to provide welfare to the citizens. This duty is not conditioned with anything under the Constitution. If the State wants to provide some benefits of a welfare scheme to its citizens then why make it mandatory to have a 12 digit code? The State is supposed to provide these benefits even when I don’t possess any such Unique Identification Number. There seems to be a barter between privacy and welfare scheme benefits under Aadhaar. Public Interest is a vague concept. The State views Public Interest as simply providing welfare schemes and ensuring that the benefits adequately reach the citizens, whereas Citizens view Public Interest as a sum total of Individual Interests which go far beyond enjoying benefits of welfare schemes. It comprises of being able to enjoy liberty, autonomy over one’s personal information and free expression among other things. The Aadhaar scheme seems to flow from the former viewpoint. While the Aadhaar had been introduced by the previous government, the current BJP-led government has been pushing for the same to be mandatory and linked to everything including the PAN card, bank account, mobile phones and driver’s license and even for children is admission into schools.
In relation to the August 24 judgment of the Hon’ble Supreme Court of India, Union Minister of State for Home Affairs, Kiren Rijiju has said that both individual freedom and Privacy are very important but these cannot be unqualified as everything is over ridden when it comes to the national interest and security. Can Aadhaar come under qualifications/ exceptions to the Right to Privacy under the penumbra of national interests? The quantum of infringement on this Right has to be carefully examined so that the qualification does not destroy and abandon the law, which will lead to no Privacy at all in spite of the Apex Court declaring it to be.
The Indian Government views Aadhaar as a key solution for a myriad number of societal challenges, but critics see it as a step toward a surveillance state. Though the Apex Court has answered the question pertaining to Right to Privacy, it is yet to decide upon the validity of Aadhar vis-à-vis the Right to Privacy. The subject matter of the judgment will clear the air of all doubts of whether Aadhar infringes Privacy and if it does, should it be abandoned or will it fall under the exceptions to the Right.
 Glenn Greenwald, No Place to Hide (2014).
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 (1954) SCR 1077
 (1964) 1 SCR 332
 (1975) 2 SCC 148
 (1994) 6 SCC 632
 (1997) 1 SCC 301
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57 U. CHI. L. REV. 1057 (1990) at 1068
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 Section 8- The Authority shall perform authentication of the Aadhaar number of an Aadhaar number holder submitted by any requesting entity, in relation to his biometric information or demographic information, subject to such conditions and on payment of such fees and in such manner as may be specified by regulations.
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