Beyond Aadhaar


Journalists, lawyers and politicians have one trait in common—they tend to exaggerate everything. All news is sensational, all court verdicts are landmark judgments, and all policy decisions are for the good of humanity.

The current high level of focus on the Supreme Court hearings in the Aadhaar privacy case has an element of hyperbole built into it.

The government's contention is that there is nothing in the Constitution that says the privacy of individual citizens is a Fundamental Right. The counter argument is that India cannot call itself a Democracy if it disregards the spirit of the Preamble which guarantees protection of the dignity of all citizens.

Media pundits have taken the issues involved to an even higher plane. There is much more at stake, they say, than just the question of protection of personal information and data—whether the apex court delivers a judgment for or against the right to privacy, it would open up many a Pandora's box.

The simple truth is that the Supreme Court has begun hearing a petition challenging the mandatory use of Aadhaar identity cards. The contention of the petitioners is that this amounts to an infringement of privacy. The matter pertains to protection of personal information and data.

Somehow the case has assumed a bigger dimension. The focus has shifted from data protection to a much larger canvas involving philosophical, moral and ideological questions of whether individual privacy is a Fundamental Right protected by the Constitution.

The Court itself has elevated the issues by setting up a rare nine-member Bench to rule on the matter. As a result of this, whatever ruling it finally gives will have far-reaching consequences over and above the Aadhaar card dispute.

Some legal eagles are already spelling out some of the consequences. If the Court upholds the right to privacy, they say, many other laws will have to be changed and reviewed—such as the law criminalizing suicide, abortion, homosexuality, bigamy, religious practices, etc. etc. So also, existing laws pertaining to consumption of alcohol and even the recently imposed ban on beef eating would have to come back to the drawing board. "The implications are huge", one expert has said, "this case goes far beyond Aadhaar and the ruling will decide the future of constitutional democracy in India".

On the face of it, this seems like an exaggeration.

But then again, there is an element of reality in it. Today the nation is at the crossroads. The government of the day is aggressively assaulting basic concepts of freedom, liberty, expression, lifestyle and dietary habits.

The idea of nationalism and patriotism is being sought to be defined or re-defined. The right to speak in Parliament by a leader whose party has recently lost a provincial election is being questioned. New taboos are being arbitrarily announced almost every second week—and being ruthlessly and viciously implemented.

So perhaps it's a good omen that the apex court of the land should treat a petition regarding the threat to privacy posed by the compulsory imposition of Aadhaar, as an opportunity to pronounce a judicial verdict on the broader issue of whether the right to privacy is a Fundamental Right.

The danger is that if the nine wise men on the Bench decide in their wisdom that there is no such Right enshrined in the Constitution, the consequences could be equally far-reaching. It would justify even the most undemocratic policies of the present regime in a manner that would encourage further trampling of individual freedoms and diversity of thought, expression and lifestyle.

All things considered, perhaps it would be better for all concerned to treat the present case as just a limited matter. There are times when tunnel vision is more preferable and safer than exaggerated visions of sweeping and all-embracing verdicts.

The simplest way out would be to what eventually the Court is likely to do—to follow the best practices of other countries. The ideal model that could be relied upon is the European one.

Briefly, the objective of the new set of rules in Europe is to give citizens back control over of their personal data, and to simplify the regulatory environment for business. The data protection reform is aimed at allowing all citizens and businesses to fully benefit from the digital economy.

The issue is this—whenever you open a bank account, join a social networking website or book a flight online, you hand over vital personal information such as your name, address, and credit card number. What happens to this data? Could it fall into the wrong hands? What rights do you have regarding your personal information?

The answer is not complex—it is based on the principle that everyone has the right to the protection of personal data.

India would be well advised to follow European law, under which personal data can only be gathered legally under strict conditions, for a legitimate purpose. Furthermore, persons or organisations which collect and manage personal information must protect it from misuse and must respect certain rights of the data owners which are guaranteed by other laws.

Every single day, businesses, public authorities and individuals transfer vast amounts of personal data across borders. Conflicting data protection rules in different countries would disrupt international exchanges. Individuals might also be unwilling to transfer personal data abroad if they were uncertain about the level of protection in other countries.

Therefore, a common set of rules would ensure that personal data enjoys a high standard of protection everywhere in the world. It is that simple. No need for over-reaction. No necessity for an exaggerated response.

India is still an emerging economy. Digital India is still a slogan, not yet a reality. Basic issues related to poverty alleviation, universal literacy, food and shelter for all are far from being resolved. This is not the time in the country's evolution for nine men or ninety to apply their scholarship to matters on which are beyond the ken and comprehension of more than half the population. For the moment, it is best to leave things as they are.

As far as Privacy is concerned it would be a travesty if the government of the day were to be empowered by the Courts to use victory in one election as a license to take away the right for all times to come.

Vol. 50, No.9, Sep 3 - 9, 2017