[Guest Post] Aadhar Controversy and Privacy Rights

Editor’s Note: With the Aadhar controversy being overshadowed by several others, this post re-highlights those subduing issues. This post follows from our previous post, here, apprehending a linkage between Aadhar and mass surveillance.

The post has been contributed by Ms Sushila Ram Varma. She has done B.A., LL.B from North Bengal University, Darjeeling. She has over 30 years experience in litigation. She is the Chief Legal Consultant and Founder of The Indian Lawyer. She is also a Partner at Vitale & Partners and Member at Cross Border Associates. She may be reached at contact@theindianlawyer.in.

Background

The year 2017 saw huge public uproar against the scheme of the Government of India requiring citizens to link their Aadhaar numbers to various services in order to avail benefits of government social welfare schemes such as Indira Gandhi National Disability Pension Scheme, Maternity Benefit Programme, etc. However, people were apprehensive about the risks and fallouts of mandatory linking of Aadhaar to the various databases.

Reasons for such apprehensions may be attributed to the fact that India is still an e-village and the current cyber infrastructure is inadequate to protect the personal information of citizens.

This concern led to the Apex Court constituting a five-judge constitution bench in December 2017 for hearing the petition challenging the constitutionality of the Aadhar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016.

Recent Update

In one such ongoing hearings, on 30.01.2018, the SC stated that although profiling of citizens on the basis of Aadhaar data has enabled and facilitated the government in providing citizen-centric and social benefit schemes and in weeding out fake beneficiaries of welfare schemes, however, it is not possible for the Court to ignore the fact that there may be a risk of misuse by private entities who are allowed to use such Aadhaar data for profiling individuals.

The Apex court further expressed concern over the potential misuse by private agencies, etc who may aggregate the Aadhaar data to profile and track individuals in what may be a violation of the right to privacy.

In Justice KS Puttaswamy vs Union of India , the Supreme Court has held that the right to privacy is a fundamental right under Article 21 of the Constitution of India.

The Bench stated as follows (emphasis added):

The general apprehension that one has is that upon linking Aadhaar data, the same may be collected and recorded by various Government and private agencies such as mobile operators, banks, etc. In such cases, there may be a risk of misuse by them or by any third party including risk of third party gaining illegal access to the entire demographic and biometric database along with the allotted Aadhaar numbers, risk of identity theft and of information being stolen, replicated, faked or misused by third parties, etc. Such unscrupulous and/or deceitful parties may then misuse the Aadhaar data of a person to track his banking transactions, railway bookings and other financial histories (as Aadhaar is linked to his bank account); any details about his calls, messages, etc, (as Aadhaar is linked to his mobile number), etc. In certain cases, such data may also be put to illegal and criminal use by terrorists, anti-nationals, or illegal immigrants to finance terrorism or execute organized crime in the country. Eventually, it may render the objectives of mandatory Aadhaar linking ineffective and unproductive. It is generally believed that the hazards of Aadhaar-linking with various such databases may outweigh its benefits.

In light of the aforesaid apprehensions, the Apex Court stated that the government will have to explain why private entities should be allowed to have access to Aadhaar data and how will the government guarantee that such data is kept secure and protected.

The Apex court now has the responsibility to examine the benefits as well as the drawbacks of sharing Aadhaar related information by Indians to one and all. It is hoped that the Supreme Court will take adequate measures to ensure that privacy rights of the citizens are duly protected.

This post has been internally edited by The Law & Practice Blog’s editorial team.

Image from here

L&P Editorial Team

The Law & Practice Blog's editorial team.

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