Aadhaar and the right to privacy

Last week, attorney general Mukul Rohatgi set the cat among the pigeons when he told the Supreme Court that there was no fundamental right to privacy under the Constitution. The first law officer cited a 1954 case (M.P. Sharma vs Satish Chandra) in which an eight-judge bench held there was no such right. Rohatgi was arguing for the government on a challenge to Aadhaar, the unique identification number project.

Privacy rights champions say that because Aadhaar is not backed by legislation, the government can abuse data gathered under the programme. Biometric information collected from all those who sign up for an Aadhaar number can be abused if not backed by adequate legal safeguards. The government and those who feel that without Aadhaar, targeting of social welfare schemes will be hard, think otherwise.

In theory, each citizen should to be entitled to his or her privacy, subject to what is necessary to ensure security of citizens, including their well-being. This, however, is a circle that is not easy to square. A carte blanche denial of privacy will defeat democracy, but so will an absolute right to privacy. In the latter case, terrorists will simply do what they please while the government watches helplessly. That is not the question here. The question is about ensuring the effectiveness of the right without the costs of such a right becoming a debilitating factor.

One way out of the problem could be to create a fundamental right to privacy. This can be given shape in two ways. One could be by a judicial extension of already existing fundamental rights. This approach has been used in the past. In a 1985 decision, the apex court extended the right to livelihood to be a part of the fundamental right to protection of life and personal liberty (Article 21). Something similar can be done with respect to the right to privacy by enlarging the fundamental freedoms enshrined in Article 19. This will be the positive route. The other way is to limit the reach of the government by ending further enrolment under the Aadhaar platform. Currently, more than 800 million Indians have been handed out Aadhaar numbers and approximately 400 million more are yet to be enrolled.

This would be a liberal solution to the right to privacy problem. Both approaches are limiting for different reasons. If the court goes ahead and creates a right to privacy, it will raise a further question: how will this new right be secured? It is instructive to compare the new right with an existing right, for example, the right from arbitrary arrest or the freedom of speech. The cost of enforcing these rights is not high. This is because the number of violations of these rights is low and the burden on the judiciary for settling matters is rather low.

Ask yourself the question as to how many habeas corpus writs the high courts and the Supreme Court issue every year? It is also costly for the police and governments to engage in the violation of this right. A free press, an independent judiciary and a Parliament alive to the freedom of citizens are sufficient to safeguard this right.

This cannot be said about the right to privacy. Here the equation of costs is reversed. It is cheap for any government—if it so chooses—to violate this right. The technology that is available permits anyone—let alone a government—to snoop. The number of potential violations will be so large that enforcing this right will be well-neigh impossible for our overburdened court system.

If privacy has to be secured meaningfully, then some limits have to be placed on the government’s ability to gather information. That, whatever maybe one’s persuasion on privacy matters, is not about to happen easily. The courts and the country need to debate on how to achieve this end. The right question to ask is about the design of incentives that can secure a modicum of privacy in this age. There has hardly been any debate on the subject.

Should Aadhaar be shut down because it endangers privacy? Tell us at views@livemint.com