COMPROMISING CITIZENS PRIVACY FOR NATIONAL

INTEREST: A FAIR-TRADE OFF?

Submitted By:

Divya Basan

BBA LLB, PRN No- 16010324322

Section D

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

In

SEPTEMBER 2017

Under the Guidance of

Ms. Priya Jain

Assistant professor

SPECIAL CONTRACT

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 CERTIFICATE

The Project titled, “Compromising Citizen’s privacy for national interest: A fair trade off?”
submitted to the Symbiosis Law School, Hyderabad for Specific Contract as part of internal
assessment is based on my original work carried out under the guidance of Ms. Priya Jain. The
research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged. I understand that I myself could be held responsible and accountable for
plagiarism, if any, detected later.

Signature of the candidate

DIVYA BASAN

8 September 2017

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 ACKNOWLEDGEMENT

This research was supported by Ms Priya Jain. I would also like to thank all my colleagues from
Symbiosis Law School Hyderabad who provided insight and expertise that greatly assisted the
research, although they may not agree with all of the interpretations/conclusions of this paper.

I would like to show my gratitude to my parents and other loving members of my life for sharing
their pearls of wisdom with me during the course of this research, although any errors are my own
and should not tarnish the reputations of these esteemed persons.

Further, I would also like to thank the respective librarian who provided with all the resources.

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 INDEX

SR.NO TOPIC PAGE

NO.

1. ABSTRACT 5

2. INTRODUCTION 6

2.1 PRIVACY 6

3 CHAPTER 1 7

3.1 INTERNATIONAL CONCEPTS OF PRIVACY 7

3.2 RIGHT TO PRIVACY IN INDIA 8

4 CHAPTER 2 13

4.1 COMPROMISING CITIZENS PRIVACY FOR 13

NATIONAL INTEREST

4.2 AADHAAR 15

5 CONCLUSIONS AND SUGGESTIONS 21

6 BIBLIOGRAPHY 24

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 ABSTRACT
The Constitution of India grants every citizen of this country the fundamental right to life and
liberty. It states that no person shall be deprived of his life or liberty except according to procedure
established by law1. Article 21 is the heart of fundamental rights and prone to various
interpretations. This extension in terms of interpretation of article 21 is only possible by giving an
extended meaning to the word ‘life’ and ‘liberty’. These words are construed meaningfully. Right
to Privacy is one such right which has come to its existence after widening up the dimensions of
Article 21. The Constitution of India does not grant any right to privacy as such. However, The
Hon’ble Supreme Court in many instances has recognized this right to privacy as a fundamental
right. The recent judgement of the Supreme Court recognizes Right to Privacy as the fundamental
rights of the citizens of India. Countries like USA, UK, India, and at International level UDHR,
ECHR, ICCPR has recognized this right as fundamental right.

This research project gives an in-depth analysis of Right to Privacy and whether it can be
compromised for safeguarding the national interest and security of the country. Further, it
elucidates on previous instances in which, the right to privacy, which is a fundamental right of the
citizens of India, has been violated under the garb of “national interest”.

The research further focusses on the most important aspect, The Aadhar act. The government
recently passed the Aadhar act, which requires the citizens of India to share their personal
information along with biometric scans. The government made it mandatory for citizens to obtain
an Aadhar. This research illustrates the dangerous aspects of Aadhar and how it violates the
fundamental rights of the citizens in its absolute form and justifies its actions by stating that it is
for “national security”. The research finally concludes by providing alternative solutions for
safeguarding national interest of India in place of Aadhar act.

1 Article 21 of Indian Constitution.

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 INTRODUCTION
PRIVACY

Privacy in its simplest terms can be defined as freedom from unauthorized intrusion2. However, of
all the human rights in the international catalogue, privacy is perhaps the most difficult to define
since it is an extremely subjective term. Hence, the definitions vary widely according to context
and environment. In many countries, the concept has been fused with Data Protection, which
interprets privacy in terms of management of personal information. Outside this rather strict
context, privacy protection is frequently seen as a way of drawing the line at how far society can
intrude into a person's affairs. It can be divided into the following facets:

 INFORMATION PRIVACY, which involves the establishment of rules governing the

collection and handling of personal data such as credit information and medical records;

 BODILY PRIVACY, which concerns the protection of people's physical selves against
invasive procedures such as drug testing and cavity searches;

 PRIVACY OF COMMUNICATIONS, which covers the security and privacy of mail,

telephones, email and other forms of communication; and

 TERRITORIAL PRIVACY, which concerns the setting of limits on intrusion into the
domestic and other environments such as the workplace or public space.3

Therefore, through this, a consensus can be obtained stating that, Privacy is a fundamental right
that which is central to the protection of human dignity and forms the basis of any democratic
society. It also supports and reinforces other rights, such as freedom of expression, information
and association. Activities that restrict the right to privacy, such as surveillance and censorship,
can only be justified when they are prescribed by law, necessary to achieve a legitimate aim.

However, just like the fundamental rights granted to us are not absolute, same is the case with
privacy. The right to privacy granted to the citizens of India is not absolute and thus, is prone to

2
As defined by Merriam Webster
3
“Privacy” as stated in International Press of Human Rights, New York.

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various restrictions. The concept of privacy, in general terms, is often understood as an essential
requirement for the realization of the right to freedom of expression. Undue interference with
individual’s privacy can both directly and indirectly limit the free development and exchange of
ideas. In one such report, right to privacy is understood as an “essential requirement for the
realization of the right to freedom of expression. Undue interference with individual’s privacy can
both directly and indirectly limit the free development and exchange of ideas4”.

CHAPTER 1

INTERNATIONAL CONCEPTS OF PRIVACY

Article 12 of Universal Declaration of Human rights states that “No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence not to attack upon his
honor and reputation. Everyone has the right to protection of the law against such interference or
attacks.”

Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and
correspondence, nor to unlawful attacks on his honor and reputation.

Both these instruments provide the right to privacy to the citizen of India, and the states, who are
signatory to it, are expected to fulfil these rights.

Article 8 of European Convention on Human rights states “Everyone has the right to respect for
his private and family life, his home and his correspondence; there shall be no interference by a
public authority except such as is in accordance with la and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country, for the
protection of health or morals or for the protection of the rights and freedoms of others.”

Since India is a signatory to the International Covenant on Civil and Political Rights and Universal
Declaration of Human Rights, 1948, India has the obligation to enforce these rights. In the lack of
enabling legislation, the International Covenant of Civil and Political Rights can have the legal
force as the other laws in India. And the Universal Declaration of human rights is a mere

4
Promotion and protection of right to freedom of opinion and expression.
(SSRN:http://ssrn.com/abstract=1951416 or http://dx.doi.org/10.2139/ssrn.1951416)

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declaration, and it does not have the legal force. But the courts have used provisions of
International Covenant on Civil and Political Rights and Universal Declarations of Human Rights
to make its argument stronger; and also in order to make realized the government about his
obligation toward it citizen and towards international instruments.

In the case of People's Union of Civil Liberties v Union of India5, Supreme Court cited the Article
17 of International Covenant of Civil and Political rights and Article 12 of Universal Declaration
of Human Rights. Through these two international instruments, the court strengthened its
contention and also alerted the government about its obligation towards its citizen.

RIGHT TO PRIVACY IN INDIA

So far, we have established that the Constitution of India does not specifically guarantee a “right
to privacy”. However, through various judgements over the years, Indian courts have interpreted
the other rights in the Constitution as giving rise to right to privacy primarily through Article 21,
right to life and personal liberty. In 2015, this interpretation was challenged and refereed to a larger
bench of the Supreme Court in the writ petition, Justice KS Puttaswamy & Another v Union of
India and others6. Here, it was declared that right to privacy was indeed a fundamental right and
intrinsic to Article 21, right to life and personal liberty.

Four decisions by the Supreme Court have established the right to privacy in India as flowing from
Articles 197 and 218.

KHARAK SINGH VS. STATE OF UP

The scope of Right to Privacy, came up for consideration in Kharak Singh vs. State of Uttar
Pradesh, which was concerned with the validity of certain regulations that permitted surveillance
of suspects. The Supreme Court had the occasion to consider the ambit and scope of this right
when the power of surveillance conferred on the police by the provisions of the U.P. Police

5
(2003) 4 SCC 399
6
(1970) 1 SCC 248
7
Freedom granted as a fundamental right to the citizens of India. It includes, freedom of speech and expression,
freedom to assemble peacefully and without arms, freedom to form associations and unions, freedom to move
freely throughout the territory of India, to reside and settle in any part of India, to practice any profession and
carry out any occupation, trade or business.
8
Right to life and personal liberty.

8|Page
Regulations came to be challenged as being violative of Articles 19(1)(d)9 and Article 21 of the
Constitution. The Court repelled the argument of infringement of freedom guaranteed under
Article 19(1)(d) of the Constitution, and the attempt to ascertain the movements of an individual
was held not to be an infringement of any fundamental right. The minority judgment, however,
emphasized the need for recognition of such a right as it was an essential ingredient of personal
liberty.

The minority decision of SUBBA RAO J. deals with this light. In the context of Article 19(1) (d),
the right to privacy was again concerned by the Hon’ble Supreme Court. In a detailed decision,
Jeevan Reddy J. held that “the right to privacy is implicit under Article 21. This right is the right
to be let alone. In the context of surveillance, It has been held that surveillance, if intrusive and
seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed
by Article 19 (1)(d) and 21. Surveillance must be to prevent crime and on the basis of material
provided in the history sheet. In the context of an anti-terrorism enactment, it was held that the
right to privacy was subservient to the security of the state and withholding information relevant
for the detention of crime can’t be nullified on the grounds of right to privacy”.

R.M MALKANI VS. STATE OF MAHARASHTRA

In 1972, the Supreme Court decided a case which was one of the first of its kind concerning
wiretapping. In this case, the petitioner’s voice had been recorded in the course of a telephonic
conversation where he was attempting blackmail. He asserted in his defense that his right to
privacy under Article 21 had been violated. The Supreme Court declined his plea holding that “the
telephonic conversation of an innocent citizen will be protected by courts against wrongful or high-
handed interference by tapping the conversation. The protection is not for the guilty citizen against
the efforts of the police to vindicate the law and prevent corruption of public servants.” 10

9
Freedom to move freely throughout the territory of India.
10
AIR 1973 SC 157, 1973 SCR (2) 417 5

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GOVIND VS. STATE OF MADHYA PRADHESH

A three-judge bench of the Supreme Court was regarded as a setback to the right to privacy . Here,
the court was evaluating the constitutional validity of Regulations 85511 and 85612 of the Madhya
Pradesh Police Regulation which provided for police surveillance of habitual offenders including
domiciliary visits and picketing. The Supreme Court desisted from striking down these invasive
provisions holding that “It cannot be said that surveillance by domiciliary visit, would always be
an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be
habitual criminals and those who are determined to lead criminal lives that are subjected to
surveillance”.13

The court in this case, went on to make some observations on the right to privacy under the
Constitution: “Too broad a definition of privacy will raise serious questions about the propriety
of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will,
therefore, necessarily, have to go through a process of case by case development. Hence, assuming
that the right to personal liberty, the right to move freely throughout India and the freedom of
speech create an independent fundamental right of privacy as an emanation from them it could
not he absolute. It must be subject to restriction on the basis of compelling public interest. But the
law infringing it must satisfy the compelling state interest test. It could not be that under these
freedoms that the Constitution-makers intended to protect or protected mere personal
sensitiveness”

R. RAJAGOPAL V STATE OF TAMIL NADU14

The scope and ambit of the right of privacy or right to be left alone came up for consideration in
this respective case.

11
Surveillance restricted to-
12
Surveillance defined.
13
(1975) 2 SCC 148
14
1995 AIR 264

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B.P. Jeevan Reddy, J. held that though the right to privacy is not enumerated as a fundamental
right it can certainly be inferred from Article 21 of the Constitution. The Court in conclusion held
that;

(a) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a "right to be left alone". A citizen has a right to safeguard the privacy
of his own, his family, marriage, procreation, motherhood, child-bearing and education among
other matters. Thus, no one can publish anything concerning the above matters without his consent,
whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating
the right to privacy of the person concerned and would be liable in an action for damages. Position
may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily
invites or raises a controversy.

The rule laid before was prone to exceptions. For instance, the court observed that;

(b) Any publication concerning the aforesaid aspects becomes unobjectionable if such publication
is based upon public records including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer subsists and it becomes a
legitimate subject for comment by press and media among others.

However, keeping the interests of decency in mind, the court also observed that Article 19(2)15 an
exception must be carved out to the aforesaid rule, viz., a female who is the victim of a sexual
assault, kidnapping, abduction or a like offence should not further be subjected to the indignity of
her name and the incident being publicized in the press/media.

The law thus declared by the Supreme Court that right to privacy , ie a right to be left alone is
implicit in the right to life and personal liberty guaranteed under Article 21 of the Constitution of
India.

15
Reasonable restrictions

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PEOPLE’S UNION FOR CIVIL LIBERTIES VS. UNION OF INDIA

In this case, a question arose before the Supreme court whether wiretapping was an
unconstitutional infringement of a citizen’s right to privacy or not.

The Hon’ble Court held that; “The right privacy by itself has not been identified under the
Constitution. As a concept it may be too broad and moralistic to define it judicially. But the right
to hold a telephone conversation in the privacy of one’s home or office without interference can
certainly be claimed as a ‘right to privacy’. Conversations on the telephone are often of an intimate
and confidential character. Right to privacy would certainly include telephone-conversation in the
privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the procedure established by law.”

RESTRICTIONS ON RIGHT TO PRIVACY

However, the constitutional right to privacy in India is subject to a number of restrictions. These
restrictions have not been defined or elucidated anywhere and have been identified through the
interpretations of various provisions and judgements of the Supreme Court of India:

In Maneka Gandhi v Union of India16, it was held that right to privacy can be restricted by
procedure established by law and this procedure would have to be just, fair and reasonable ie
reasonable restrictions can be imposed on the right to privacy in the interest of the sovereignty and
integrity of India, the security of the state, friendly relations with foreign states, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence17.

Further, in Govind v State of M.P18, it was held that right to privacy can be restricted if there is an
important countervailing interest which is superior to it ie the right to privacy can be restricted if
there is a compelling state interest to be served. Moreover, the hon’ble court in R. Rajagopal v
State of Tamil Nadu19 held that the protection available under the right to privacy may not be
available to a person who voluntarily introduces him or herself into controversy.

16
1978 AIR 597
17
Article 19(2), Constitution of India.
18
1975 AIR 1378
19
1995 AIR 264

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Thus, to conclude, it may be observed that the right to privacy in India is, at its foundations a
limited right rather than an absolute one.

CHAPTER 2

COMPROMISING CITIZEN’S PRIVACY FOR NATIONAL INTEREST.

In the light of the Mumbai terrorist attacks in 2008, India implemented a wide range of data sharing
and surveillance schemes to increase public safety and security by tackling crime and terrorism.
However, these projects have raised serious privacy concerns. The central Monitoring System was
envisioned to centralize the interception of communications data and enable law enforcement
agency access to it. If implemented, it would be connected to the Telephone Call Interception
System (TCIS) which will help monitor voice calls, SMS and MMS, fax communications on
landlines, video calls etc. These schemes include mass interception of communication, keyword
searches, and access to user’s data. They suggest that the Indian state is moving towards large-
scale monitoring of its population.

Further, the implementation of national programmes like Unique Identification Number, National
Intelligence Grid, DNA profiling, privileged communications, Crime and Criminal Tracking
Network and System, brain mapping etc. .and the rampant use of technology by the masses for day
to day affairs have been justified under the garb of “national interest and security”.

Despite the concerns expressed on the possible invasion of a citizen’s right to privacy guaranteed
under Article 21 of the Constitution of India, these activities continue and are justified by our
elected representatives.

Mainly, there are two major laws that regulate digital and telephonic surveillance, respectively.

a) Information Technology Act, 2000

b) Indian Telegraph Act, 1885

Section 520 of the Indian Telegraph Act, 1885 empowers the Central government and the state
government to order the interception of messages in two circumstances:

20
Power of the Government to take possession of licensed telegraphs and to order interception of messages.

13 | P a g e
 (a) In the occurrence of any “public emergency” or in the interest of “public safety”
(b) If it is considered necessary in the interests of sovereignty and integrity of India; the
security of the state; friendly relations with foreign states; public order; and for the
prevention of incitement to the commission of an offense.

The Informational technology act,2000 widely regulates the interception, monitoring, decryption
and collection of information of digital communications in India. More specifically, section 6921
of the Information technology act empowers the central government and the state governments to
issue directives for the monitoring, interception or decryption of any information transmitted,
received or stored through a computer resource.

The Department of Personnel and Training had prepared a draft bill on right to privacy in the year
2011, the Right to Privacy Bill, 2011. Although, there had been several discussions on the Draft
Bill 2011, however the same has failed to materialize into a comprehensive legislation on privacy.

In order to effectively address the privacy issues, the Planning Commission of India had directed
the constitution of a ‘Group of Experts’ on December 26, 2011, to identify the privacy issues and
prepare a report on the same to facilitate authoring of privacy bill for India. The Group was
constituted under the Chairmanship of Justice A.P. Shah, Former Chief Justice, High Court of
Delhi with 11 other members respectively22.

Previous instances of cases like Nira Radia tapes in the year 2010 and subsequent to this infamous
leak, Mr Ratan Tata, the then Chairman of the Tata Goup had approached the Supreme Court for
violation of fundamental right to privacy demonstrate that our elected representatives are very
much capable of compromising our fundamental rights.

The question that remains unanswered is, Should the Privacy of citizens be violated for national
security?

21
Power to issue directions for interception or monitoring or decryption of any information through any computer
resource.
22
Shah committee

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The Hon’ble Supreme Court in Govind v State of M.P23, held that right to privacy can be restricted
if there is an important countervailing interest which is superior to it ie the right to privacy can be
restricted if there is a compelling state interest to be served.

The author of the present research project agrees with the Hon’ble court in the above case and is
of the opinion that privacy cannot be unqualified and national security overrides everything.
However, when it comes down to violation of fundamental rights of the citizens of India, in its
absolute form, then it is highly unacceptable. This is exactly the issue with Aadhar wherein,
fundamental rights are violated in its absolute form and the citizens have no say whatsoever. The
implications of Aadhar are extremely dangerous and toxic to a democratic republic and will be
dealt in the subsequent chapter.

AADHAR.

Aadhaar is a 12-digit unique identification number issued by the Indian government to every
individual resident of India. The Unique Identification Authority of India (UDAI), which
functions under the Planning Commission of India, is responsible for managing Aadhaar numbers
and Aadhaar identification cards.

The Aadhaar project was initiated as an attempt towards having a single, unique identification
document or number that would capture all the details, including demographic
and biometric information, of every resident Indian individual. Currently there are a plethora of
identity documents in India including passports, permanent account numbers (PANs), driving
licenses and ration cards. The Aadhaar card / UID will not replace these identification documents
but can be used as the sole identification proof when applying for other things. It will also serve
as the basis for Know Your Customer (KYC) norms used by banks, financial institutions, telecom
firms and other businesses that maintain customer profiles. Aadhaar numbers will eventually serve
as the basis for a database with which disadvantaged Indian residents can access services that have
been denied to them due to lack of identification documents.

A resident Indian can apply for the Aadhaar number and card by submitting the existing proof of
identity (passport, PAN card, driving license, etc.) and proof of address (phone/ power bill, bank

23
1975 AIR 1378

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statements, etc.) and by undergoing biometric profiling (fingerprints and iris scan) at any Aadhaar
center.

On March 27, the Supreme Court ordered that the government cannot be stopped from using
Aadhaar identification for its non-welfare schemes like opening of bank accounts, filing of tax
returns, verification of new and existing mobile phone numbers and user credentials etc. However,
it did maintain that the government cannot make Aadhaar mandatory for welfare schemes and it
has allowed the government to use it in some schemes, not permitted to be used as a mandatory
requirement.

Yet, the government soon announced the mandatory requirement of Aadhar. The following are the
welfare and non-welfare schemes that required Aadhar.

(a) Beedi/Iron Ore/limestone workers for availing house subsidy.

(b) Supplementary nutrition program
(c) Aadhaar compulsory for farmers who want to take crop insurance benefit and people
eligible for subsidized food grains.
(d) People wishing to avail benefits of welfare schemes under Integrated Department of
Horticulture, National Apprenticeship Promotion Scheme and Janani Suraksha Yojana
need mandatory Aadhaar.
(e) Aadhaar made mandatory to avail training under Integrated Child Development Services
of the Ministry of Women and Child Development.
(f) Aadhaar mandatory for benefits under Grih Kalyan Kendra scheme
(g) Aadhaar made mandatory for financial support under National Mission for Empowerment
of Women. Same condition imposed for Scheme for Adolescent Women, students to
avail Central scholarship and financial support given under National Means-cum-Merit
Scholarship.
(h) Aadhaar mandatory for e-panchayat training benefits and students who wish to avail
central scholarships at the college level.
(i) Soil Health Management Scheme and Soil Health Card Scheme require Aadhaar.
(j) Supplementary meals at creches require Aadhaar.
(k) Maternity Benefit Programme and Integrated Child Protection Scheme
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 (l) Aadhaar made mandatory for women to avail vocational training, loans and other
schemes.
(m) Benefits for water and social services also come under the ambit of Aadhaar.
(n) Benefits under Research and Development in Water Sector and National Social
Assistance Program
(o) Mid-Day meal benefits require Aadhaar.
(p) Deendayal Antyodya Yojana and National Rural Livelihoods Mission also make Aadhaar
mandatory.
(q) Aadhaar mandatory for disabled children between 6-14 years and are eligible for benefits
under Sarva Shiksha Abhiyan
(r) Aadhaar also made mandatory to book tickets on Indian Railways’ online ticket booking
platform at IRCTC.
(s) Disabled students taking benefits under National Action Plan for Skill Training of
Persons with Disabilities
(t) Aadhaar also made mandatory for availing benefits under National Health Mission by
trained female community health activist ASHA or Accredited Social Health Activist.
(u) Bhopal gas tragedy victims need Aadhar to avail compensation from government.
(v) National Awards Scheme for Technology Innovation in Petrochemicals and Downstream
Plastics Processing Industry makes Aadhaar mandatory.
(w) Pradhan Mantri Ujjwala Yojana for women below poverty line requires
(x) Aadhar made mandatory for compensation and benefits to people under Bonded Labour
Rehabilitation Scheme.
(y) Aadhaar made mandatory to file Income Tax returns or applying for PAN.

Thus, what started as a “voluntary” enrolment soon became mandatory. The Aadhaar project was
initially sold to the public based on the claim that enrolment was “voluntary”. This meant that
there were no legal compulsions to enroll. The government and the Unique Identification Authority
of India (UIDAI), however, worked overtime to create a practical compulsion to enroll. Aadhaar
was made mandatory for an ever-widening range of facilities and services. It became clear that life

17 | P a g e
without Aadhaar would become very difficult since the government was linking it with school,
colleges, railways, PAN card etc.

The Hon’ble Supreme Court in March 2014 ruled that “no person shall be deprived of any service
for want of Aadhaar number in case he/she is otherwise eligible/entitled.”. The author of this
research paper believes that this was a very sensible interpretation of what it would really mean
for Aadhaar to be voluntary.

Throughout the proceedings, the Central government stood by the claim that Aadhar was a
voluntary facility. However, the actions of the government prove otherwise. Despite the criticism
that Aadhar faces, it is important to note that Aadhar could work wonders as a voluntary facility.
A certified, verifiable, all -purpose identity card would be a valuable document for citizens of this
country. But the UIDAI has never shown much interest in the Aadhar card, or in developing
voluntary applications of Aadhaar. Instead, it has relentlessly pushed for Aadhar being used as a
mandatory identification number in multiple contexts, and for biometric authentication with a
centralized database over the internet.

The Hon’ble Supreme Court through its order caused consternation in official circles, since it ruled
out most of the planned applications of Aadhaar. However, The Aadhar Bill, was, passed as a
money bill by the Lok Sabha. Under Section 7, the Bill gives the government sweeping powers to
make Aadhar mandatory for a wide range of facilities and services. Further, section 57 enables the
government to impose Aadhaar identification in virtually any other context, subject to the same
safeguards as those applying section 7.

In concrete terms, the bill allowed the government to make Aadhaar authentication compulsory
for salary payments, old -age pensions, school enrolments, train bookings, marriage certificates,
getting a driving license, buying a SIM card, using a cybercafé ie virtually anything. The
government might even have the power to extend Aadhaar’s grip to even more imaginative
domains.

In a democratic country, these aspects pose extremely dangerous implications. To avail the benefit
of these “schemes”, the citizens have no option but to obtain an Aadhaar.

18 | P a g e
The Aadhaar act, thus needs to be declared unconstitutional and raises the following issues;

(A). ISSUE OF PRIVACY

In order to obtain an Aadhaar, the citizens are required to share their personal data.

In the Aadhaar Act, a person’s “identity information” has two components:

(a) Demographic information

(b) Biometric information.

Demographic information includes details “related to the name, date of birth, address and other
relevant information of an individual,” collected when an Aadhaar number is issued. Demographic
information explicitly precludes a few specific details, such as caste and religion, but otherwise, it
is anything that the government decides. Further, the Act allows the government to require you to
inform the Unique Identity Authority of India (UIDAI) if your demographic information changes
– For instance, change of address.

Biometric information includes photograph, fingerprints, iris scan, and any “other biological
attributes of an individual” the government may decide. The Act also uses the concept of “core
biometric information,” which is defined in the same way except that the word “photograph” is
omitted. The boundary between core biometric information and other biometric information can,
yet again, be modified by the government, except that core biometric information must include
fingerprints and iris scan by definition.

Hence, it is mandatory for the citizen to share these personal information’s accordingly.

(B). ISSUE OF AUTHENTICATION.

The danger of Aadhaar does not end here. Section 8 of the Aadhaar act is concerned with
authentication.

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So when the Aadhaar number is submitted, the “requesting entity” (any “agency or person” who
is willing to pay the fees) can now ask for any aspect of that person’s identity information, except
for the core biometric information. Everything else, including photograph, can be shared by UIDAI
with the requesting entity. To illustrate, if you use your Aadhaar number to buy a sim card, the
company can use it to access all your identity information, minus the core biometrics.

In light of Section 8, there is something highly misleading about the recent debate on whether the
central identities data repository (the store of identity information held by the UIDAI) is “secure”.
This repository is not supposed to be inaccessible. On the contrary, the Aadhaar Act puts in place
a framework for sharing the identity information in that database, minus the core biometrics.
Further, the government has virtually unlimited powers to prescribe the content of the identity
information, the terms of access and much more.

(C). ISSUE OF MASS SURVEILLANCE

The biggest danger of Aadhaar however, is its power of mass surveillance. This is, possibly, far
more serious than the issue of confidentiality of the database. Once Aadhaar becomes an all-
purpose identification tool, the lives of citizens will be as transparent to the state. Details of railway
bookings, phone call records, financial transactions and so on will be accessible to the government
at the click of a mouse without invoking any special powers. The citizen has no say whatsoever.

People can be identified on the basis of sensitive biometric information, the risk of being profiled,
targeted and marginalized by the state on the basis of this sensitive information is very high. Hence,
there is a requirement for the protection of data privacy and territorial privacy. The claims that the
UID number will provide efficient access to developmental projects and facilities, should be
viewed with suspicion, because when sensitive information of this nature is placed in the control
of the state, it gives enormous power to the state.

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(C). ISSUE OF DIGNITY

Dignity signifies the innate rights of human beings to be treated with respect and ethical conduct.
The UN Charter and the Universal Declaration of Human Rights both emphasize this point. The
risk of surveillance, and breach of privacy clearly violates human dignity, as it curtails the freedom
of choice that human beings are able to make, by placing individuals continuously under the threat
of intrusive surveillance by the state, and the public domain. The factor of the UID scheme that
truly robs human beings of their dignity is the treatment of human beings as mere numbers.

In the case that an individual’s UID number is manipulated, used by someone else fraudulently,
lost, or a technical problem occurs, the individual will be a non-existent entity before the state,
having no value, as all the benefits and rights could be claimed only through the UID.

CONCLUSIONS AND SUGGESTIONS

The above discussion on the right to privacy and dignity with respect to Aadhaar clearly shows
that the Aadhaar, if brought into practice, would discount the right to privacy and dignity
guaranteed under the Constitution of India, 1950, and would cause serious implications upon the
freedom and choices of the Indian citizen. The Aadhaar could also lead to a situation of increased
state surveillance, causing an invasion of the right to privacy, and in turn affecting the dignity of
individuals. The argument that the Aadhaar is voluntary, and hence there is no infringement of
privacy has been proved wrong in the above discussion. Also, it has been proven that depicting
Aadhaar as a tool for development is nothing more than a myth. The important measures that need
to be taken in tackling the issues raised by Aadhaar could be summed up as follows:

1. In view of the increased protection required specifically for territorial privacy and data privacy,
there should be a provision added to the Constitution of India that deals with multiple
dimensions of privacy- such as personal, territorial, communication and data/information.
Such a provision would bring clarity as to the extent of the right to privacy.
2. There is need for a comprehensive privacy legislation which would ensure the protection of
personal and sensitive data of people. There is also the need for an established regulatory body.

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 This could be structured along similar lines as that of the data protection commissioner offices,
which exist in Canada, Ireland, and other developed informational economies.
3. As regards to The National Identification Authority of India Bill, 2010, there is a need for a
specific provision that states clearly that no particular services or facilities shall be denied to
citizen on basis of lack of a UID number. Also, there is the need for a provision that protects
the privacy of the already collected information. Clause 33 of the Bill, which allows for the
disclosure of information for national security, needs to be restricted and events of national
security need to be clearly defined.

Therefore, Aadhaar is a threat to the democratic principles of a society and it needs to be declared
unconstitutional. The Central government on the other hand are putting forth various bizarre
contentions that jeopardizes the positions of citizens in a democratic society. For instance, one of
the contention laid by the government is that some of the data that the Aadhaar requires has already
been shared by citizens on their respective social networking sites and as far as the issue of
biometric scans are concerned, the government argues that, biometric scans are required for
obtaining a visa as well. So, if the citizens of India, can share their personal information with a
foreign authority, then why can’t they do that to safeguard the national security of India.

This, however, is an extremely dangerous contention but forth by the government. The central
government, in the present scenario is totally ignoring the idea of “choice”. For instance, when a
person posts anything on social networking site, they do it because they want to and not because
they have to. This is exactly what the Aadhaar act is denying its citizens. It is denying the citizens
their right to choose.

Finally, The author of the present research would like to conclude by stating that, If in a world’s
largest democracy, The only way of safeguarding national security of the county is by violating
the fundamental rights of the citizens in its absolute manner, then nothing can be more tragic and
dangerous than this.

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 BIBLIOGRAPHY

WEBSITES
1) State of Privacy- India-privacyinternational.org
2) Conflict of Interest: Digital privacy Vs. National Security- The HINDU
3) Cis-India.org, (Law Enforcement, National Security and Privacy)
4) India.blogs.nytimes.com- Can India Trust its government on Privacy?
5) Lethal surveillance versus Privacy- The HINDU
6) Privacy and National Security- DECCAN HERALD
7) Fraserinstitue.org- National security Vs Privacy in the modern age
8) Debatewise.org- Privacy and freedom is more important than security.
9) www.gilc.org- Privacy and human rights
10) www.nap.edu- tech.economictimes.Indiatimes.com

INTERNATIONAL CONVENTIONS REFERRED

1) Universal Declaration of Human rights
2) International Covenant of Civil and Political Rights.
3) European Convention on Human rights states

STATUES
1) The Constitution of India.

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