#dnaEdit: Privacy ignored

The Centre’s contention that the right to privacy is not a fundamental right guaranteed by the Constitution of India reflects the failure of both Parliament and the judiciary to conclusively settle the issue despite legitimate concerns of privacy violations. Attorney-General Mukul Rohatgi has cited an eight-judge bench Supreme Court (SC) ruling of 1954 to buttress the Centre’s contention. In that judgment, the SC had rejected the defendant’s plea that privacy must be construed as a fundamental right. Despite subsequent judgments ruling that the right to privacy was implicit in Article 21 of the Constitution (Protection of life and personal liberty), Rohatgi contended that these were delivered by smaller benches and hence could not override the 1954 verdict. Rohatgi was defending the Centre against a challenge to the Aadhaar unique identification project. In March 2014, the apex court had issued an interim order directing that no person be deprived of any public service for not possessing an Aadhaar card. Despite this, the Centre and states have progressively increased the number of services requiring Aadhaar, hinting at a long-term agenda for using Aadhaar information, including the biometric data, for purposes that were unstated at its inception.

Though Rohatgi has promised a “foolproof” law, the delay in framing such a law for over six years, and the shifting of goalposts in terms of use of Aadhaar data, is warning enough that the government cannot be taken at face value. Enjoining Aadhaar with every activity undertaken by citizens has the potential of becoming an intrusive surveillance tool. The logical way to go about such contentious initiatives would have been to institute the safeguards first — privacy and data protection laws. The SC should, once and for all, iron out the precedent on right to privacy by constituting a nine-judge bench. It should also note how half-measures like its March 2014 interim order on Aadhaar usage are ineffectual. Rohatgi’s argument that the 1954 verdict rejected privacy as a fundamental right lacks context. It was a case in which the petitioners, accused of embezzlement, opposed the power of the State to conduct searches, seizures and surveillance citing the right to privacy. As such, subsequent SC benches need not be faulted for losing sight of the 1954 judgment in which privacy figured only in passing mention.

In 1994, while ruling that the right to privacy is implicit in Article 21, Justice Jeevan Reddy termed it as the “right to be let alone”. Before that, in Govind vs State of MP, the apex court accepted that the right to privacy emanated from Articles 19(a), (d) and 21, but said it was not an absolute right. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the fundamental right must be subject to restriction on the basis of compelling public interest,” the court said. The 2009 Delhi high court judgment decriminalising homosexuality also upheld the right to privacy noting that it created a “private space in which man may become and remain himself”. Several international conventions including the Universal Declaration of Human Rights, 1948, enshrine the right to privacy. The Information Technology Act now offers limited protection for privacy and data protection. The privacy risks within Aadhaar are immense. The possibility of data theft and hacking cannot be discounted. The involvement of private firms in the Aadhaar project has multiple implications for data security. The access for intelligence and law enforcement agencies to Aadhaar data also remains undefined. The Centre’s delay in creating legislative safeguards on the use and storage of Aadhaar data, while unpardonable, should not be an excuse for the judiciary to enter the domain of framing policies on Aadhaar use. But by clearly defining right to privacy and the no-go areas, the court can help aggrieved citizens mount legal challenges to the Aadhaar project.