CONSTITUTIONAL VALIDITY OF AADHAAR: IS IT A VIOLATION OF RIGHT TO PRIVACY?

CONSTITUTIONAL VALIDITY OF AADHAAR: IS IT A VIOLATION OF RIGHT TO PRIVACY? Sudipto Koner 1 "Privacy is a special kind of independence, which can be understood as an attempt to secure autonomy in at least a few personal and spiritual concerns, if necessary in defiance of all the pressures of modern society. It is an attempt that is to say to do more than maintain a posture of self-respecting independence toward other men; it seeks to erect an unbreakable wall of dignity and reserve against the entire world." -Clinton Rossiter, "The free man in the free society", The essentials of freedom. INTRODUCTION The Unique Identification Authority of India (UIDAI) introduced a scheme called AADHAAR which was aimed at issuing identity cards for every citizen across India. It involves a registration procedure which involves linking of a person s individual credentials, which consists of his biometric and demographic data, to a 12 digit number which is exclusive to that particular person and will thereafter be a proof of identity for that person. 2 The scheme is being regarded by the government as an ambitious step towards the vision of Digital India, on the rationale that it is an exhaustive digital database of those enrolled under the scheme. Currently, AADHAAR has been linked with several schemes and benefits which are run by the government. 3 The point of contention by the government is that this scheme was rolled out for improving scope in implementing welfare schemes. But the point is, on this ground, the government is also vehemently violating the right to privacy of an individual under article 21 which is inculcated under right to life and liberty. Article 21 states that No person shall be denied his life or personal liberty barring the procedure recognized by law. The term life comprises all those facets in life which have a bearing on making a person s life relevant, complete and worth 1 2nd Year BA LLB Student, National Law University, Odisha 2 Apka AADHAR, Available at http://www.uidai.gov.in/aapka-aadhaar.html, Last Visited on 18/7/2017. 3 Link your AADHAR, Available at https://rasf.uidai.gov.in/seeding/user/residentsplash.aspx, Last Visited on 18/7/2017. 1 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

living. According to Black s Law dictionary, privacy means right to be left alone; right of a person to be devoid of any publicity uncalled-for; right to live freely from any baseless intervention by the public in matter with which public is not necessarily concerned. Right to Privacy is one of the rights which an individual values the most. Enrollment under the AADHAAR scheme is optional but there have been several incidents whereby people have been deprived of their benefits, reason being they weren t enrolled under the AADHAAR scheme. 4 So it brings us to the point that, to be eligible for such benefits, individuals have to submit their demographic and biometric credentials, which is a gross violation of their right to privacy. Currently, there is no provision for securing personal data of a person, and there are no penalties invoked in case there is a breach of an individual s personal credentials. Furthermore, the AADHAAR scheme is not supported by any legislation, which again violates the person s right to life and personal liberty. The matter regarding the constitutional validity of the AADHAAR scheme still lies sub-judice before the Hon ble Supreme Court. 5 The government has stood by its contention that right to privacy was never meant to be a fundamental right. Thus, the paper attempts to figure out the fascinating jurisprudence created for establishment of right to privacy in India. It also seeks to determine the constitutional validity of the AADHAAR scheme in the context of right to privacy, because it is an extremely precious right of all individuals. AADHAAR: OUR PRIVACY IS AT STAKE The Hon ble Supreme Court had asked for the Aadhaar issue to be heard in front of a Constitution Bench. Around 696 days later, on July 18-19, the case is now being presented in front of a fivemember bench to adjudicate upon all issues relating to Aadhaar, which comprises of obligatory exclusive identification for accessing benefits and violation of privacy. The bench is also expected 4 Mandhani Apoorva,"Meanwhile, the Petitioners shared affidavits of instances where citizens had been denied their rights: among them, an instance of a non-processing of a scholarship for a poor person, another of an individual denied a voters identity card for the lack of an Aadhaar card, and another of bank accounts not being allowed without Aadhaar."- SC reserves order on transfer of Aadhaar Challenge to Const. Bench; AG says Privacy not a Fundamental Right, Livelaw.in, August 6, 2015 (last visited on 18/7/2017). 5 K.S. Puttaswamy v. Union of India, Writ Petition (Civil) Nos. 494 of 2012 and 829 of 2013. 2 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

to make a statement regarding the constitutional validity of the Aadhaar Act, 2016- which was passed as a money Bill. This decision was arrived at by a three-judge bench hearing the case of Shanta Sinha vs. Union of India, which interrogated on the issue of rendering Aadhaar compulsory for access to government schemes like scholarships and midday meals. 6 Shyam Divan, the lawyer arguing in favour of the petitioner, claimed that the whole country was turning into a concentration camp as even children under 18 years of age have no choice but to submit their demographic and biometric information to be eligible for government benefits. Divan stated that the government has been constantly handing out notices pursuing people to bring with them their biometric ID, even after the Supreme Court had given the verdict through an interim order that Aadhaar would not be compulsory. 7 Divan, while disagreeing with the obligatory linking of Aadhaar cards with PAN numbers for tax filing, had contemplated that Aadhaar is a breach to the right to bodily integrity, dignity and informational self-determination under Article 21. However, the bench had stated that arguments with regards to privacy would not be heard. Till now, matters in respect of privacy have not been heard, and this Constitution Bench is to give a verdict on the future of Aadhaar in India. Some of the ways in which biometric data can be misused are listed below: Fragile Privacy laws: There is no provision for right to privacy, and in today s digitalized world, our privacy is of prime significance. Our private credentials are being used by the government, and on numerous occasions, private data of individuals were leaked. There are no provisions for Indians to secure their private data against misuse by the government and/or corporates. Blatant misuse of Identity: In February of 2017, Reliance Jio agents were detained for blatant misuse of fingerprints which were accessed via Aadhaar e-kyc, for the purpose of activation 6 Astha Kapoor, Aadhaar case in Supreme Court: Your privacy is at stake, http://www.dailyo.in/politics/aadhaarpan-right-to-privacy-modi-sc-shyam-divan-uidai-biometrics-leak/story/1/18426.html, July 17, 2017 (last visited on 18/7/17). 7 Ibid. 3 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

and sale of Jio Sim cards. This type of misuse of identity via Aadhaar is understandable due to the fact that the Central Identities Data Repository (CIDR) is centralized and renders our private data insecure. By misusing identity of others, that very identity can be utilized to perform transactions including banking in favour of an individual without their permission. Data breach: There have been several instances of data breaches of Aadhaar numbers via websites run by the government. Recent reports suggest that there was a suspicion that information of Reliance Jio phone numbers (which uses Aadhaar) with names and addresses of users had been leaked via a security breach and were being sold on the dark web. Due to the presumption that Aadhaar numbers have become the primary unit of identity in India, so the linking of private credentials to all kinds of databases, and leaving them open on the internet is undeniably a bad idea. Another report raised suspicion that private information of around 130 million Aadhaar numbers were leaked from four websites run by the government that deal with welfare schemes under National Rural Employment Guarantee Act (NREGA) and other pensions. Authorization issue: A vast number of people have suffered authorization issues, like fingerprints refusing to confirm as their own. This is possible to occur for a plethora of reasons like discrepancy of fingerprints in the database, server problems, erroneous capturing of biometric information, among others. Subsequent failure of confirmation of identity means that the individual will be deprived of necessary benefits from the government. No right to opt out: Once an individual registers under the Aadhaar scheme, the individual s private information remains in the database for life and doesn t have a choice and the right to opt out even if there is no desire to have their biometric information stored. Counterfeit Aadhaar registrations: Reports of counterfeit Aadhaar registrations keep cropping up across India, and the UIDAI has targeted around 34000 centers indulging in malicious practices. 8 8 Astha Kapoor, Aadhaar case in Supreme Court: Your privacy is at stake, http://www.dailyo.in/politics/aadhaarpan-right-to-privacy-modi-sc-shyam-divan-uidai-biometrics-leak/story/1/18426.html, July 17, 2017 (last visited on 18/7/17). 4 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

DO WE POSSESS THE FUNDAMENTAL RIGHT TO PRIVACY AS CITIZENS OF INDIA? More than 67 years have passed since India implemented a democratic, liberal and secular Constitution. Today, in 2017, there is an ongoing debate in the Supreme Court on the context of fundamental rights. The thriving question is: Do we, as citizens of India, possess a fundamental right to privacy? This simple question has commenced a massive debate. How do we define privacy? Is privacy fundamental with regard to right to equality and right to life? Is privacy interconnected with the very idea of liberty which is one of the fundamental doctrines of the Indian Constitution? Is privacy restricted to investigation or is it a supreme right entwined with the right to equality and dignity? These were the questions put before a nine-judge constitutional bench chaired by the Hon ble Chief Justice of India. 9 Let us go back to some previous judgments to understand the extent of the right to privacy that exists before we delve into the various opinions of the aforementioned bench. It was a first when the Supreme Court of India agreed to deliberate on the issue of right to privacy in the leading case of M.P. Sharma v. Satish Chandra 10 wherein the extent of the police's powers of investigation and examination were delineated, and it was held by the court that no right to privacy exists under the Constitution. The court persisted with the same ground of reasoning in Kharak Singh v. State of U.P, 11 a case on police investigation and domestic visit at night by the police officials. It was found and deemed by the majority that the Constitution had no exclusive assurance of a 'right to privacy', however Justice Subba Rao in his minority opinion viewed that the right to personal liberty takes away not only a right to be devoid of restraints on his movements, but also devoid of intrusions on his private life. It is a fact that our Constitution does not explicitly possess a right to privacy as a fundamental right but the said right is a necessary constituent of individual liberty. Every democratic country 9 Anusha Soni, Is your right to privacy absolute? SC debates tough questions on Aadhaar, http://www.dailyo.in/politics/right-to-privacy-aadhaar-sc-supreme-court-constitution/story/1/18469.html, July 19, 2017 (last visited on 19/7/17). 10 AIR 1954 SC 300. 11 AIR 1963 SC 1295. 5 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

seeks to secure domestic life of its individuals; it should give him rest, bodily contentment, harmony of mind and safety. In the last recourse, a person's home, where he stays with his family, is his 'castle', it is his barricade against intrusion on his individual liberty." Thus Justice Subba Rao's opposing view could in fact be termed as the first judicial order and paved the way for advancement of Right to Privacy jurisprudence in India. Identical ground of rationale was favoured by the Hon'ble Court in several successive judgments, which began from 1975 in the case of Govind v. State of Madhya Pradesh 12, in which the Court for the very first time determined Right to Privacy as a fundamental right under Article 21 to its recent verdict in the Ramlila Maidan Incident v. Home Secretary 13, Union of India in 2012. This legal right to privacy has thereafter been developed as the outcome of a succession of judicial decisions. This exquisite and intricate jurisprudence over right to privacy was recently contested in an ongoing dispute which questioned the constitutional legitimacy of the AADHAAR scheme. This issue has instantly started the debate which was earlier put to rest regarding the presence of Right to Privacy under the Indian Constitution. It is being contemplated that in Govind's case 14, the Supreme Court while deciding upon the question of the legitimacy of police investigation, bypassed the justification fundamental to the previous judgments in MP Sharma and Kharak Singh. 15 So a contrasting opinion was proposed with regard to existence of the right to privacy as a fundamental right. In August 2015, a three judge bench of the Hon'ble Supreme Court discussed the issue with regard to the right to privacy being a fundamental right to a bigger constitutional bench. 16 This discussion has brought about two significant issues i.e. whether fundamental right to privacy is being endangered or is it an affirmative direction towards a well-founded basis of this right, thus solving the dispute beyond doubt. 12 AIR 1975 SC 1378. 13 (2012) 5 SCC 1. 14 AIR 1975 1378. 15 Oberoi Namit, The Right to Privacy: Tracing the Judicial Approach following The Kharak Singh Case, http://www.commonlii.org/in/journals/injlconlaw/2007/11.pdf, Last Visited on 17/7/2017. 16 K.S. Puttaswamy v. Union of India, MANU/SC/0849/2015. 6 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

In my opinion, right to privacy is a right which was pursued for a long time and is not Res Integra. The reference order has therefore created a hint of uncertainty over the right to privacy. The contrasting views, as proposed, amongst the 8 judge and 6 judge bench opinion respectively in MP Sharma and Kharak Singh to the following smaller bench decisions like a 3 judge bench decision in Govind's case, is bad with regard to the law and should not have been given the green light. Hon'ble court in M.P. Sharma's case had no justification to acknowledge right to privacy as protected under Article 21, it restricted itself only to Article 20(3) of the Constitution. 17 Thus, the rationale behind the judgment in M.P. Sharma's case had no effect in the current matter. Furthermore, both the judgments of M.P. Sharma and Kharak Singh were pronounced in the Gopalan era, i.e. before the Hon'ble Courts landmark judgment in Maneka Gandhi v. Union of India 16. The majority opinion in the Kharak Singh case was founded on the ground that the rights contained under Article 19 were not incorporated under Article 21, which had been rejected successive to the Supreme Court's verdict in the Maneka Gandhi case, in which a bench of the Supreme Court held, while making reference to its previous judgment in the Kharak Singh case, stated: "In our opinion this is not the proper methodology. Both are autonomous fundamental rights, though they are overlapping. The fundamental right to life and personal liberty has many characteristics and some of them are inculcated under Article 19." Now let us delve into the various opinions as given by some of the members constituting the nine-judge constitutional bench. Gopal Subramanium, the senior counsel, while making an argument in favour of the petitioners, asserted that privacy is intrinsic to preserving each right under a liberal Constitution. The core of his argument has been that the central ideas of democracy, freedom and liberty cannot exist without the existence of the right to privacy. The Preamble to the Indian Constitution inherently preserves the right to privacy. Mr. Subramanium contended that the key words of "sovereign, republic, democratic" stated in the Preamble do bring about an impression of privacy. 18 He contemplated 17 Article 20(3) - No person accused of any offence shall be compelled to be a witness against himself. 18 Anusha Soni, Is your right to privacy absolute? SC debates tough questions on Aadhaar, http://www.dailyo.in/politics/right-to-privacy-aadhaar-sc-supreme-court-constitution/story/1/18469.html, July 19, 2017 (last visited on 19/7/17). 7 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

that privacy is a bigger idea and that sharing of personal data is only one of the facets of privacy. "Privacy is about the freedom of thought, values and individual independence. None of the fundamental rights can be implemented without presuming a definite level of privacy," he stated, while addressing the nine-judge bench. Mr. Subramanium also contemplated that the state is under an obligatory duty to secure fundamental rights of its citizens. He said that liberty existed even before the Constitution came into effect and that law has only acknowledged its presence. Soli Sorabjee, arguing in favour of the petitioners, came to the point that even though privacy is not expressly indicated doesn't imply the right ceases to exist. He viewed that the freedom of press has been a consequence of Article 19 and, similarly, the right to privacy can be inferred largely. A different judge of the bench, Justice Rohington Nariman, affirmed: "Privacy is a vast idea in the Constitution, we need to describe it. We need to fathom whether privacy emerges from Article 14 (right to equality), Article 19 (right to freedom of expression) or Article 21 (right to life and personal liberty). Or it can emerge from either with regard to the state of affairs in the case." 19 The court has additionally stated that it is impossible to have a comprehensive list of the circumstances or instances that denote privacy. But the debate has taken a desirable twist that was longed for. The apex court is now delving into the delineations of the right to privacy- with regard to the scope and the possible restrictions. It will now determine whether the right to privacy emerges from Article 14, Article 19 or Article 21. THE CONSTITUTIONAL VALIDITY OF AADHAAR The constitutional validity of the massive AADHAAR Scheme of the government is sub judice before the Hon'ble Supreme Court in K.S. Puttaswamy v. Union of India, 20 and alongside the 19 Ibid. 20 1978 SCR (2) 3. 8 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

infringement of the right to privacy, the scheme is being contested on several other constitutional principles. The reliability of the same could be inferred from the pro-tem orders passed by the Hon'ble Court, preventing the connection of services and benefits to the 12-digit Aadhaar number. 21 It is important to take into account that there is extensive infringement 22 of the disputed orders and it seems that government is in some kind of rush 23 in concluding the data collection and linking procedure so that there is no scope of reverting back even if the scheme is asserted to be ultra-vires to the Constitution. In this scheme an individual has to submit his biometric data, and his iris and fingerprints are scanned but there is no proper system in place to safeguard that all this data and prevent misuse. This scheme is not supported by a legislative authorization and is still in force only as an administrative notification. 24 Even if a permissive legislation is passed the same thing would be a daunting infringement of an individual's right to life and personal liberty. In Maneka Gandhi v. Union of India 25 the majority on the seven-judge bench viewed that any process recognized by law under Article 21 would have to be "fair, unbiased and rational" and could not be "whimsical, repressive or random". Article 21 is has enough room to inculcate a plethora of rights within itself. The AADHAAR scheme being in blatant violation of right to privacy is in contrary to the spirit of law and extent of Article 21 as laid down in Maneka Gandhi's Case. It cannot be declined that this 12-digit AADHAAR number is intensely being linked to various governmental welfare schemes; because the purpose of the AADHAAR scheme itself says so. Thus, an individual who declines to submit his personal demographic or biometric data under the scheme is being deprived of several state guaranteed welfare benefits, which is an infringement of his right to life on its own. 21 K.S. Puttaswamy (Retd) v. Union of India (UOI) and Others, (2014) 6 SCC 433. 22 Supra Foot Note at 2. 23 As of 8 August 2015, over 89.3 crore (893 million) Aadhaar numbers had been issued under the scheme, Public Data Portal, UIDAI, last visited on 17/7/2017. 24 Notification No.-A-43011/02/2009-Admn.I, 28 January 2009, Planning Commission, Government of India" (PDF). UIDAI, January 28, 2009 (last visited on 19/7/17). 25 AIR 1998 Kant 14. 9 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

In Shantistar v. Narayan, 26 the Hon'ble Court stated that Article 21 comprised of rights with regard to a member of the weaker sections of the society, and they would be provided with residential housing, 27 including pavement inhabitants. 28 So, if an individual is deprived of any benefit under a welfare scheme on the reason of him not having an AADHAAR card, to which he would have been otherwise eligible to, then such a declination is an infringement to his right to life. Bearing in mind the wide spread infringement of its previous orders, the Court in August 2015 issued a number of instructions. It ordered the Centre to give wide promotion through electronic and print media that the card is not compulsory to be eligible for the government schemes. Furthermore, it was asserted that "AADHAAR will not be used for any other function except Public Distribution System (PDS), kerosene and LPG distribution system." However, the Court asserted the fact that even for availing benefits under PDS, kerosene and LPG distribution system, the card shall not be made compulsory. 29 CONCLUSION As pointed out earlier, the fight for right to privacy has been going on for quite a long time. Although a mention was made to the constitutional bench, if the court comes clear on the position of right to privacy as a fundamental right, it would bring the dispute to rest, however it will further defer the decision on constitutional validity of the AADHAAR scheme. In the case of Mr. CJ Karira v. Planning Commission, government of New Delhi, an RTI application was registered by the plaintiff to UIDAI pursuing information concerning the sharing of data with regard to the AADHAAR card held by a public organization. The appellant filed an application to central information commissioner under section 19(1) of RTI act. Coming to how AADHAAR infringes the Right to Privacy is that the exclusive identification has enabled many government as well as private small agencies to get access to the biometrics information and 26 (1990) 2 SCJ 10. 27 id. 28 Sodan v. N.D.M.C, (1990) 3 SCJ 431. 29 Supra at 13. 10 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

consequently, the private credentials of an individual can be put to use by any agency or person for their own objectives. Submitting our individual biometric data to unconstitutional authorities for availing unique identity to avoid the prospect of future problems of identification upto national level is same as submitting the key of our homes to the police, when there has been a robbery in the vicinity. This AADHAAR scheme is not only violating the right to privacy of an individual but can also be viewed as a national hazard as these cards or numbers are not just for the general public but also for the military personnel and security organizations where biometrics is not only having a negative effect on privacy but will also act as a breach in nationwide security. As mentioned earlier, the contrast between the larger judge bench opinion in the cases of MP Sharma and Kharak Singh respectively and the following smaller bench decisions with regard to the stand of right to privacy as a fundamental right is ostensible. Therefore, it is concluded that decision in this case could have taken a different and a better direction with the assistance of wellestablished jurisprudence developed over the years regarding the right to privacy following the Maneka Gandhi case. A scheme comparable to AADHAAR was attempted as a trial in the UK but the scheme was discarded on the assertion that it was an intrusion to individual liberty. The AADHAAR scheme in India has had a similar impact and therefore is an infringement to personal liberty as protected under Article 21 of the Constitution. This scheme is not supported by any legislation which could arrange for any guidelines or safety measures under this scheme. 11 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW