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#Apprentice Does Aadhaar infringe the right to privacy?

Bar & Bench

In this edition of Apprentice, Jindal Global Law School’s Prachi Pranjli writes about privacy concerns surrounding the Aadhaar project.

Aadhaar is a project which had been started by the Unique Identification Authority of India, the tender for which had been won by HCL Infosystems ltd. The Aadhaar itself is a 12 digit individual identification number, with the motive of making it mandatory for identity and address proof in India. To enrol for an aadhaar number, one has to submit proof of identity, address, photograph, proof of date of birth and on the spot collection of biometrics of fingerprints, iris and face recognition.

After this project was brought to life, the government of India made a move towards making an aadhar number a mandatory provision for all citizens of the country. However, a writ petition was filed by Justice K.S. Puttaswamy in the Supreme Court of India stating that the aadhaar project was not backed by any legislation and was infringing the ‘right to privacy’ of the citizens of India, and thus should not be made mandatory.

In order to deal with the question of privacy, one needs to examine whether the right to privacy is a fundamental right within the meaning of Article 21 of the Constitution of India. Answering this question, privacy infact can be equated with liberty of individuals. It is so because, if a person is under continuous surveillance by state, then this particular act would result in infringing the liberty of that person as well as curbing his various freedoms which have been bestowed upon him by virtue of Part III of the Constitution.

Hence, a person’s private information should not be nationally publicised; the consequences of this could be disastrous. It could also lead to an attack to national security where by such details can be used in obtaining fake passports, visas, licenses etc. by anti-social elements of society. Moreover nobody has the right to curb the freedom of an individual when he is rightly exercising it by being vocal about the fact that his privacy needs to be protected. Therefore, by making aadhar card mandatory for citizens, the government is actually infringing their right to privacy, which infact is a part of liberty, an important aspect of the basic structure of the constitution.

In the case of Kharak Singh v. State of UP AIR 1963 SC 1295, it has been held that a person living in his residence cannot be disturbed by the state or its officers as this would result in infringing his fundamental rights, as enshrined under Art. 21. In yet another case, State of Maharashtra v. Public Concern for Governance Trust & Others (2007) 3 SCC 587, it was held that right to life with dignity cannot exist without right to privacy and reputation, which is inherent in each and every individual. Thus, these cases have created a foundation for the interpretation that right to privacy is to be understood in the context of right to life with dignity as prescribed under Art. 21.

The Aadhaar project is clearly in violation of right to privacy under Art. 21 as personal data like fingerprints, iris scans, etc. of each individual is collected by private parties and as stated above, can easily be misused by anyone – a serious concern for the citizens of India. The collection and enrolment of the biometrics is done by private parties, thus it can easily be leaked and misused by anyone. There is no law backing this project, which can in return protect the sensitive personal data of individuals and prevent it from being leaked into the virtual forum, to a person who is not authorised to get this information.

The aadhaar project deal as stated earlier, was won by HCL Infosystems ltd. which is a public limited company, which within the meaning of Art. 12 is not a ‘state’. The collection of personal biometrics for aadhar card, is neither done by the government nor the state, which establishes the fact that, government is not accountable for the collection of any personal data which is undertaken for the purposes of creation of aadhaar card. Thus, there is no guarantee given by the government that our personal data is safe in the hands of the private parties recruited for these purposes and that it will not be misused.

This particular project is infringing the fundamental right to privacy of the individuals under Art. 21. Furthermore, there is no law which details the purposes for which the aadhaar number can be used and cannot be used. In the recent judgment of K.S. Puttaswamy v. Union of India (2014) 6 SCC 433, the Supreme Court has allowed, but not made mandatory, the use of aadhaar for Jan Dhan Yojana, MNREGA, pension, public distribution system, provident fund schemes, and LPG subsidy.

And even though the use of aadhaar card is not made mandatory, then also people have applied for the issue of card and their personal data is now no more personal but it has been made public.

Hence, since more than half of the population of India has already submitted their personal data with private parties, the primary question regarding protection of privacy is what remedies can the government of India provide against the infringement of this very right?

#Apprentice Does Aadhaar infringe the right to privacy?

Prachi Pranjli is a third-year  BBA LLB student at Jindal Global Law School, Haryana.

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