The cloud of confusion over the impact of the Supreme Court’s landmark judgment on the fundamental right to privacy would have on the main bone of contention and the case’s origin – in the Aadhaar – still hangs overhead. Not only are there important questions still unanswered, or in the grey zone of interpretation minus certainty, the volte-face by the government itself on privacy and its renewed haste to push Aadhaar have come as a blow.
Latest reports are saying that the “deadline” to link Aadhaar to PAN – one of the bases of the privacy case, and a separate Supreme Court hearing in which partial relief was obtained for those who didn’t have Aadhaar – is August 31, 2017. That’s just one-month extension to the erstwhile last line of July 31, within with the linking was mandatory in order to be able to file one’s income tax returns.
The new last date is one more Damocles’ sword hanging overhead citizens who have fought the Aadhaar juggernaut, exposing its countless follies and fraudulent claims on benefits and welfare services, while also laying bare its innumerable security failings, and its handiness as a state and privatised surveillance apparatus.
But that hasn’t changed the government and the UIDAI from going on about the faux mandatory nature of the Aadhaar linkage to more and more services, chiefly the PAN.
Why Aadhaar breaches privacy
According to reports, the August 31 deadline of the Aadhaar-PAN link is the government’s way of saying that privacy isn’t absolute. Prasanna S, one of the lawyers associated with the privacy judgment on behalf of the petitioners, has posed seven questions and ambiguities vis-à-vis Aadhaar that the “Puttaswamy versus Union of India” judgment addresses, or opens the door to addressing.
The seven points include:
One, informational privacy, or any collection of personal information has privacy implications. This has a direct bearing on the Aadhaar Act, 2016, and the illegal mining of data from 2009 to 2016 prior the legislation, which the Act retrospectively okays. The privacy judgment can be used to render the Aadhaar Act, 2016 invalid, but that must happen in the court of law.
Two, on the question of Aadhaar Act passed as a Money Bill, and a decision against the act on this point “would render the Act stillborn”.
Three, Section 7 of the Aadhaar Act empowering governments to make UID mandatory for subsidies can be read as going against the fundamental right to privacy of the citizens, therefore cannot be mandatory.
Four, use of biometrics for online authentication and identification can be read to be against the fundamental right to privacy, bodily autonomy.
Five, mining of Aadhaar data and convergence of data for different data bases, allowing private/commercial access to Aadhaar data, once again can be interpreted going against informational privacy as enshrined by the privacy judgment.
Six, the much-refuted claim that Aadhaar prevents identity fraud, de-duplication, exclusion, etc because it uses biometrics. Right to privacy judgment can be applied to render this basis of Aadhaar juggernaut as “unconstitutional”.
Seven, foreign companies accessing Aadhaar is also a national security issue.
Additionally, Prasanna also touches upon issues that the deactivation of Aadhaar without notification, practically non-existent or redundant grievance redressal mechanism in which only UIDAI can lodge a complaint etc, are systemic flaws of Aadhaar, which the right to privacy judgment can be used to criticise vehemently.
Loopholes for Aadhaar to sneak in?
However, on the unconstitutionality of the Aadhaar Act itself, the judgment isn’t directly laying down censures, even though the Aadhaar challenge is why the privacy case was petitioned in the first place.
According to a quote in Business today, a senior lawyer Tejas Karia, partner in the noted firm Shardul Amarchand Mangaldas, has said:
“The nine-judge bench of the Supreme Court in the Puttaswamy case has decided the larger issue of the right to privacy being a fundamental right. As consequence, the three judge bench of the Supreme Court will now consider and decide the impact of the same on merits of the Aadhaar cases, and the validity of various aspects of the Aadhaar scheme. Until the decision, the deadlines for various schemes of Aadhar will continue unless the Supreme Court passes any interim direction in view of the decision of the larger bench.”
That’s the rub. Until there are direct pronouncements from the court on the Aadhaar itself, the technical silence of the SC on the Aadhaar-PAN link, or making Aadhaar mandatory for accessing benefits do not have direct legal hurdles.
Pavan Duggal, a cyber law expert, has been quoted in The Wire, saying that privacy judgment would, in fact, impact the Aadhaar legislation, but those decisions need to be made by the court. Duggal said:
“[T]he question now would be whether the collection of data under Aadhaar from 2009 till 2016 without any legislative sanction – as no law was passed by the parliament – had actually violated people’s fundamental right to privacy and if so, what is to be done with that data base?
Aadhaar was walking on thin ice from 2009 till 2016 when the Aadhaar Act was passed with the presumption that Aadhaar would be voluntary. So it only talked about the security of the Central Identities Data Repository. Meanwhile, the government made Aadhaar mandatory and a lot of things started getting linked to it, such as income tax, companies, bank accounts. So a complete eco system started developing around Aadhaar and that was without cyber security. So the Act now needs to be amended.”
While the SC had held that Centre cannot force those without Aadhaar to get UID so as to link it with PAN in its July judgment, the tone of the judgment didn’t interfere with the government decision. In fact, the constitutional validity of Section 139AA of the Income Tax Act, which was the amendment that snuck in via the Finance Act 2017, was not outlawed or read down.
Now those with Aadhaar are stuck with the ruling that PAN must be linked to the UID, while those who still haven’t got their Aadhaar, or have resisted Aadhaar, are in a legally sounder position, thanks to the July 10 ruling.
Hence, the August 31 deadline, according to an expansive reading of the right to privacy judgment, should be unconstitutional. Though, on grounds of sheer technicality, it might sail through. Now, it’s up to the court to safeguard the sanctity of its citizens and give the brilliant right to privacy its due in later jurisprudence.