Yes, Aadhaar can coexist with the Right to Privacy PDF Print E-mail
Friday, 25 August 2017 04:55
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Shobhana edit


Even fundamental rights have carve-outs, must have a body to enforce privacy and to ensure consent is informed


The unanimous verdict by a 9-judge Supreme Court bench on privacy being a fundamental right is a landmark one and has implications as far as other laws, such as Section 377, are concerned; it also has implications for the collection/use of biometric data under the Aadhaar Act, but a separate 5-judge bench will be looking into that now that privacy-as-a-fundamental-right has been settled. The government was caught on the wrong foot as it had argued that privacy was not a fundamental right—Attorney General KK Venugopal argued that while privacy was a common-law right, some aspects of it could get fundamental rights’ protection on a case-by-case basis—but the judgment is hardly the big setback it is being made out to be. The government’s focus was on protecting its right to collect data under Aadhaar and to link this with various schemes to ensure, for instance, there were no fake PAN cards or to eliminate huge ration-shop theft, and that is something SC has addressed—the 5-judge bench, of course, will have the final say. As Justice Rohinton Nariman argued, the right was not absolute, it “is subject to reasonable regulations made by the State to protect legitimate State interests or public interests.”

While the Aadhaar Act also deals with data security—even third parties collecting or processing data on behalf of Aadhaar are to be prosecuted if the data is shared/leaked—a new privacy law is clearly called for; BJD MP Baijayant Panda’s private member Bill provides for a Data Privacy and Protection Authority whose job is to ensure compliance with the law. As Justice Nariman pointed out, privacy-as-a-fundamental-right has many developing facets that need to be decided on a case-by-case basis. Many of the government’s plans for Aadhaar are laudable, but privacy goes beyond that—apart from whether demographic data collected by Aadhaar should be made public, should details of tax raids, for instance, be made public as they are today? As Justices JS Khehar, RK Aggarwal, DY Chandrachud and Abdul Nazeer have said while talking of a law to “justify an encroachment on privacy”, it must explain whether the requirement “falls within the zone of reasonableness” and whether what is being sought is “proportional to the object” to “guarantee against arbitrary state action”.

While much of the commentary before/after the judgment has focused on its impact on Aadhaar, as leading American jurist and economist Richard A Posner—whom the judgment quotes—says, “people value their informational privacy”, yet “they surrender it at the drop of a hat” by readily sharing personal data in the course of simple daily transactions. The Justice BN Srikrishna panel that has been tasked with coming out with a framework for data protection will have to work on this. The consent that most give to each app they use is mechanical and, more often than not, users don’t even read the consent terms. Does allowing access to a map app mean the user is giving permission for her data to be used for advertisement purposes; if consent is being given for one transaction, can this data be stored and used later? … Apart from insisting on short/simple consent forms, the panel could come up with a framework on how consent is to be given/withdrawn and the data used/protected. The SC privacy ruling is an important first step, how it evolves remains to be seen—case law over decades will be a big part of this.


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