Bad idea to get caught in the right to privacy debate
If the government’s inability to get legislative backing for Aadhaar wasn’t bad enough, getting tripped up in the right-to-privacy debate was avoidable, but that is precisely what it did. Predictably, the Supreme Court refused to modify its earlier order and left it to a larger bench which will first rule on the right to privacy. It is true there are previous rulings by 6- and 8-member Constitution benches that the right-to-privacy is not a fundamental right, but these are old rulings and constitutional law is something that continuously evolves. Ideally, the government should have either accepted the right to privacy as something that flows naturally from Article 21 that guarantees the right to life and liberty as fundamental, or argued that Aadhaar does not violate the right to privacy since the biometric data stored with Aadhaar is completely inaccessible to others; to the extent, it is used by banks or PDS outlets to validate transactions, the Aadhaar database simply verifies the biometrics without asking for details of the transaction.
Indeed, there is a lot more information about people that is already available with public and private authorities, but there is little hue and cry about it. Banks, for instance, have details of all financial transactions, the taxman has details of all incomes, the Election Commission has photographs and residence addresses of all voters and even puts it on its website for anyone to download—this can be used to find out details of an individual’s property from the very public property records—transport authorities have fingerprints and anyone using a mobile phone willingly agrees to allow apps to collect details of their phone books and calendars and, often enough, even details of where they are at any time of the day.
Since the SC will logically have to create a 9-member bench as the earlier ruling on the right to privacy was given by an 8-member one, this will delay a final ruling on Aadhaar—more so since there are several matters for 9-judge benches pending for years due to the unavailability of so many judges simultaneously. What the SC can also do, though, is to create a 5-judge bench to interpret the judgment of the 8-judge bench. The government needs to push for this at the earliest, and make its arguments to this bench—if Aadhaar does not violate the right to privacy, whether or not that is a fundamental right, why not allow it to be used voluntarily? Or why can’t Aadhaar be used as a voluntary proof of identity for banks if it can be for PDS and pensions—citizens will voluntarily go for this if it helps them avoid having to use other documents. After all, if over 3 crore MGNREGA workers have Aadhaar-linked bank accounts and over 14 crore subscribers have linked their LPG accounts to Aadhaar—and received R26,000 crore of subsidies—the scheme has a certain value. Indeed, given the country’s poor lose out on their rights—roughly half the R125,000 crore spent by the government on food subsidies each year does not reach the target group—Aadhaar is fundamental to their right to life. If the Aadhaar case gets lost in the debate over whether privacy is a fundamental right, it is going to remain stuck for a long time.