By ruling that the right to privacy is a fundamental right, the nine- judge Supreme Court bench has set the stage for a three-judge bench to decide on the validity of Aadhaar. Aadhaar has been challenged by a clutch of 21 petitions, starting with the first one filed in 2012 by a retired Karnataka high court judge, Justice K.S. Puttaswamy, claiming that the collection of biometric data and linking it to various activities of citizens threatened their right to privacy. The 91-year-old retired judge will now have his day in court, as will those 20 others.
The name Aadhaar was chosen as it was envisaged as the basis of a transparent new way of governance and compliance. While the provocation was Aadhaar, the issue before the Supreme Court was a much larger one, relating to the fundamental character of Indian democracy. The Supreme Court, however, made it clear that the right to privacy is not absolute, and space will have to be conceded to the State and other authorities who need basic information and proof of identification to go about their business. The Supreme Court also enjoined the State to ensure that the data is protected, as guarding citizens’ privacy is its duty.
The nine-man bench unequivocally rejected the State’s contention that privacy was an “elitist construct”. To argue privacy was not a fundamental right was imbecilic enough, but to argue it was an elitist construct reflects on the mentality of the lawyer-politicians at the helm of affairs. The eminent lawyers who argue in courts do so on their clients’ instructions. The Aadhaar scheme is a huge and costly effort, and if its potential is not usefully exploited to the fullest extent, it will be a wasted effort with people having little to show except for a numerical identification. There is a huge space between just being a person with a number, and to becoming just a number, as in some Orwellian nightmare. The government’s argument that there’s no right to privacy was in its sheer brazenness and philosophical hollowness reminiscent of the argument by late Niren De, then attorney-general, that during the Emergency even the right to life can be suspended. It is arguments like these that cause citizens to distrust the State’s motives and think the worst. Personal identification numbers linked to bank accounts and income-tax are quite normal in many countries.
In India, where the biggest item in the Budget after interest is subsidies, Aadhaar was envisaged as the base of a system that would ensure beneficiaries got their full benefits instead of being diddled of them by governmental and other intermediaries by direct transfer of benefits. Remember Rajiv Gandhi’s famous comment that 85 per cent of funds meant for people didn’t get to them. Aadhaar was also envisaged as the base of a system that by being linked with bank accounts and income-tax identification (PAN) would result in fewer escapes from the tax net and fewer transactions outside the banking system.
Now there’s so much hue and cry about the biometric data stored with Aadhaar. As biometric verification, in this case fingerprint and retinal scans, requires a person to be present, it actually adds a layer of dense security. The usual types of identification like name, ID number and password can be stolen, lost or forged. All these along with name and photographs are identification data that we routinely part with, whether for a visa, passport, driver’s licence or bank account. Yet when it comes to giving our government this data, we are clearly uncomfortable. The level of distrust also depends on class. Poor people are quite willing to part with these as they hope it will entitle them to long-denied benefits. Most rich people have much to hide, and are thus wary about parting with personal data. It is this that possibly caused the government’s lawyers to dismiss the fears as an “elitist construct”.
Privacy, like all other fundamental rights, are circumscribed by the rights of others and the collective us. In a dictum almost a hundred years ago and that is still cited, Justice Oliver Wendell Holmes wrote what is perhaps the most-quoted sentence in US Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” With this he made it clear there were limits on the First Amendment, that guaranteed free speech.
Ironically, it was this dictum that was often misused to limit free speech. It was used to imprison antiwar activists during the two world wars. It was only in 1969 that the US Supreme Court vastly expanded the limits of free speech. by ruling even inflammatory speech is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.
People who are against the government having your personal data and the means to track your movements, money transfers and spending habits, fear the misuse of State powers, as we saw in the US after the Justice Holmes dictum. Privacy as a right is no less valuable than free speech. Privacy, in its simplest sense, is the right to be left alone. In the technologically advanced society we live in, unfortunately, you can only be left alone if you live on a deserted island like Robinson Crusoe.
When we interact with society and State institutions, we have to cede a part of our privacy. The State and the myriad private and public institutions that constitute the society we now live in require information about a person. As we move ahead, with technological changes cascading upon us at a pace we have never seen before, the notion of privacy will be still a work in progress. We must therefore constantly seek to redefine the limits of individual liberties whichever way the times demand.
The writer, a policy analyst studying economic and security issues, held senior positions in government and industry. He also specialises in the Chinese economy.
