Aadhaar under uncertain cloud
With a change in stance before the apex court on the question of whether Indian citizens enjoy a fundamental right to privacy under the Constitution, the Central government has come under some criticism. In the much-hyped Aadhaar case challenging the Constitutionality of the Aadhaar project and the 2016 Aadhaar Act, the government argued against the existence of a fundamental right to privacy despite more than 40 years of jurisprudence developed by the court holding it to be so. Even as this question has now been referred to a nine-judge bench, the government has taken the opposite position in the Whatsapp case: Arguing that personal data, and consequently privacy, is an extension of life and personal liberty guaranteed under Article 21 of the Constitution. In 2011, when the Ministry of Law and Justice referred the question of the continuing operation of the Aadhaar project without a law, the higher authorities of department along with the then Attorney-General, had stated in their opinion that the right to privacy is a fundamental right under Article 21. This position was said again in the government's counter-affidavits filed in the Aadhaar petitions before the Supreme Court between 2012 and 2014. In 2015, the Central government moved ahead to argue against a fundamental right to privacy. Around the same time, its arguments in the criminal defamation case were grounded on the fundamental right to privacy. As a result, it succeeded in its attempt to save Section 499 of the IPC that provided for defamation as a criminal offence from being struck down as being in violation of the right to free speech. In the recent Aadhaar case, the government doesn't appear to take self-contradicting positions only to the right to privacy. It has not only claimed the Aadhaar as a project of inclusion seeking to prove exclusion or 'savings', rather it has also made a plea that the Aadhaar project has given millions of Indians an identity and made them visible to the state even as it defends its spongy verification procedures saying that only 0.03 per cent of the listed names were without prior identity documents.
Not only that, following many incidents of "data leaks" in which government websites were shown to be leaking personal information, including Aadhaar numbers of people, the UIDAI is reported to have played down the dangers of such leaks. However, the Act prescribes a punishment of imprisonment up to three years for such supposedly innocuous disclosure. The government also claimed that basic demographic and biometric data collected by private enrollment agencies is not so sensitive as to have any personal security implications. At the same time, UIDAI had been turning down RTI requests on the sanctity of UIDAI data on a legal exemption that relates to the sovereignty and integrity of India and national security. As the law allows the storage of names of the individuals along with their fathers' (which together can be used determine religion with near certainty), the possibility of storing one's religion in a database can never be ruled out. However, the arguments before a nine-judge Constitution Bench of the Supreme Court on whether right to privacy constitutes a fundamental right are being heard with rapt attention – with some light moments when Additional Solicitor General Tushar Mehta engaged the judges. Appearing on behalf of the Unique Identification Authority of India (UIDAI), the nodal agency for implementation of Aadhaar, Mehta said his position was like the seventh husband of Elizabeth Taylor — his turn to speak had come after several others. At this point, Justice R F Nariman, one of the judges on the bench, asked, "What happens to the eighth and ninth" —referring to those who were to still address the bench. Mehta pointed out that many countries had protected privacy via statutes without making it a fundamental right. Joining issue, Justice Nariman said, "We are told that our neighbour, Islamic Republic of Pakistan, recognises privacy as a fundamental right." Mehta tried to explain that privacy was perceived differently in different countries. In the West, he said, couples express love publicly but that was not the case in India. Justice D Y Chandrachud jibed, "It may be because we are more private". Justice Nariman corroborated: "Brother Judge was saying maybe we are more private." This enumeration appears exhaustive by no means. While some of these contradictions are subtle, but others like the government's position on the fundamental right to privacy are less so. Even on pure questions of law, one can hope that dispassionate and consistent reason, rather than convenience in the context of a specific case determines its positions before the court.