Privacy has been a key focus in the recent debate on Aadhaar. This is a very welcome development. Privacy is being interpreted in different, equally valid, ways by different sets of people. But the differences in interpretations are not always obvious to those who participate in the discussions. For instance, when computer scientists use the word privacy, they tend to it interpret from a narrow ‘data security’ perspective, whereas the lawyers in the Supreme Court have been highlighting the civil liberties angle to it. This has resulted in groups talking past each other – the solutions that the computer scientists propose, for instance, (like stronger standards for data security, including encryption) are not satisfactory to those who highlight the civil liberties aspects of privacy. Constructive conversation on the issue requires a more elaborate look ate the different dimensions of privacy.
On 1st April, a five-judge Constitution bench of Supreme Court comprising of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan told the Centre to stipulate the limits that will govern Aadhaar.
The Court Proceedings
The court also upheld that the unique identification number scheme, biometrics collected at the time of enrolment of a resident of India. While referring to Section 2(g) of the Aadhaar Act, 2016, the court informed attorney general K K Venugopal that biometrics could never be invasive.
As per Section 2(g) of the Act “biometric information” is defined as “photograph, fingerprint, iris scan, or such other biological attributes of an individual as may be specified by regulations”. This Act allows the government to add in future to the list of biometric details that UIDAI can require a citizen to part with during enrolment. The Chief Justice of India Dipak Misra said that the government cannot take blood or urine samples in the name of collecting biometrics for enrolling her/him in Aadhaar. This collection of data by UIDAI has to be non-invasive.
The SC also asked if voluntary enrolment could mean waiving of Right to Privacy. On the question of those who enrolled prior to the Act, the Centre had argued that people who had done so by waiving their right to privacy could not now claim violation of their rights. But the CJI said, “If you say fundamental rights can be waived off voluntarily, and if we uphold it, it will lead to very grave consequences.”
Additional solicitor general Tushar Mehta appearing for UIDAI said Aadhaar has the fundamental benefits by stopping frauds that had been committed in the past. He said the maximum possible security was accorded by the UIDAI for safe storage of Aadhaar data. “Despite Section 302 of IPC punishing murderers with death or life sentence, it has not been able to stop murders,” he said. The bench agreed and said, “It is virtually a cat-and-mouse game.”