Privacy is a right that should be left alone, free from surveillance and unreasonable intrusion. In an era of aggressive political activism and technology-enhanced surveillance, right to privacy has decreased to a great extent. The digital world has opened up society creating holes in the wall of privacy.
However, the complexities of modern life demand more privacy than earlier. Individual’s privacy may be violated due to unauthorised access to personal data, the undesired unearthing of one’s embarrassing information, the use of personal data for purposes other than the one for which data has been collected, among others.
Many countries have privacy laws though there are some limitations to right to privacy. Unlike the European Union and other western countries, India does not have any separate law designed exclusively for privacy protection. However, the courts on several occasions have interpreted protection of personal information within the ambits of ‘Right to Privacy’ as implicit in Article 19 and 21 of the Constitution of India.
SC Judgements
In a historic judgment on August 24, a nine-judge bench of the Supreme Court ruled that privacy is a fundamental right that is intrinsic to life and liberty and thus comes under Article 21 of the Indian Constitution. Most of the media opined that the landmark decision of the apex court could affect the unique identification programme under which biometric data of citizens is collected.
Aadhaar
Formation of an expert committee, headed by retired Justice BN Srikrishna, by the Centre to study issues relating to data protection in India and to prepare a draft Data Protection Bill was understood as an indication of Centre’s commitment to privacy of the citizens.
The Centre on July 21 told the Supreme Court that data of users was integral to the Right of Life and Personal Liberty guaranteed under the Constitution and it would come out with regulations to protect it.
However, the Central government’s insistence on Aadhaar being made mandatory for filing tax returns, opening an account in a bank, getting a telephone connection or scholarship, receiving various welfare schemes and even for getting an admit card to appear in CBSE examinations suggests that the government wants to intrude more aggressively into our privacy in the name of data protection.
In August 2015, the Supreme Court ordered that Aadhaar could not be mandatory for people to get benefits from welfare schemes. However, two months after that order, the court removed the restriction and allowed the voluntary use of Aadhaar cards in schemes.
The Supreme Court said on March 2, 2017, that Aadhaar could not be mandatory for central welfare schemes, but added that it cannot stop the government from linking the 12-digit identification number to the opening of bank accounts or filing of tax returns.
Secret of Ruling Classes
Notwithstanding the Supreme Court’s order for not making Aadhaar mandatory in different fields, the Central government in consultation with the Reserve Bank of India made it mandatory for opening bank accounts by an amendment to the Prevention of Money-laundering (Maintenance of Records) Rules, 2005 on June 1, 2017. The amendment to the Money-laundering (Maintenance of Records) Rules, 2005, contravening the apex court’s order shows scant regard of the government for the judiciary.
Now after considering a number of petitions challenging the validity of Aadhaar and the law passed subsequently in 2016, which were pending since 2014, the apex court constituted a five-judge statute bench to hear petitions from this month. The nine-judge bench verdict on right to privacy will have a crucial bearing on the Aadhaar petitions, which have argued that Aadhaar’s use of biometric details like fingerprints and iris scans violates bodily and informational privacy.
Making Aadhaar mandatory in various schemes is opposed by opposition Chief Ministers like Mamata Banerjee, Mukul Sangma and Pinrayi Vijayan. Now opposition to Aadhaar linkage has come from none other than BJP leader Subramanian Swamy, who apprehends that foreign powers may use the information for their vested interests.
Why has the BJP, which criticised the then UPA government for introducing Aadhaar, passed it as law and is pushing to make it mandatory in everyday life? Perhaps the tendency of the present NDA government at the Centre to control citizens’ social, cultural, religious and even their food habits has some linkage to this invasive initiative.
Preparing dossiers of political opponents, journalists and social activists by collecting personal information, particularly the weakness and other vulnerable records by the intelligence and police, is an established secret norm of ruling classes.
Crucial Tool
Personal information is crucial for the safety of investigative journalists. The killers of journalist Daphne Caruana Galizia, who led the Panama Papers investigation into corruption in Malta, and Indian journalist activist Gauri Lankesh used personal information to easily target them.
During Emergency, the Indira Gandhi government arrested many opposition leaders, who went underground, by collecting their personal data. Authoritarian regimes have shown a more intrusive propensity to get the private information of their citizens.
We cannot avoid sharing some personal data with the authorities. We have to share personal information to obtain a passport, an identity card, medical records and so on. Collection of people’s data and analysis, in modern term – data mining, may be valuable in many applications, but privacy threat is appended with data mining.
Consequently, Privacy Preserving Data Mining has gained importance. Aadhaar is world’s second largest comprehensive database and the instance of leakage of over 130 million Aadhaar cardholders’ data from government websites is a pointer to its high vulnerability.
We hope that the five-judge bench of the apex court constituted to look into the issue vis-a-vis right to privacy will deliver a nuanced judgment.
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