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The Hindu : Aadhaar and the Right to Privacy

Mar 29, 2017 18:07 IST

 

Aadhaar and Right to Privacy IAS Preparation needs to prepare about the issues of day to day life which have the implications on the socio-economic conditions of the common citizens. The UID, which is popularly known as Aadhaar, issued to Indian citizens by the Central government of India. It is issued and managed by the Unique Identification Authority of India (UIDAI), a statutory authority established under the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“Aadhaar Act 2016”) on 12 July 2016 under the Ministry of Electronics and Information Technology (MeitY).  It is essentially a document for identification issued by the Identification Authority of India (UIDAI) after it records and verifies every resident Indian citizen’s personal details including biometric and demographic data.

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Probable Questions for IAS Mains Exam

Q1. Does mandating Aadhaar Scheme violate an individual’s right to privacy? Critically analyse the issue with reference to the Indian Constitution.

Q2. The 12-digit unique identification number is a tool for civic empowerment and rule-based society. Discuss

Aadhaar is not supposed to replace existing identification documents like passport, PAN, driving license etc. However, it can be produced as a single identification document. The institutions like Banks, financial institutions and telecom companies can also use it as a Know-Your-Customer (KYC) verification mode and maintain profiles.

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

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Aadhaar as a threat to the individual’s privacy

  • As per the civil society, Aadhaar will expose individual's privacy to large-scale intruding from security agencies.
  • From being an optional identification tool aimed at providing social welfare benefits, Aadhaar's rapid metastasis into a mandatory, all-pervading legislative mechanism is a malignant development of citizens.
  • The high-handed introduction of Aadhaar into the lives of citizens as a legislative mechanism, Aaadhaar Bill has the complete absence of accountability if the concerned authorities are found guilty of callousness or misuse.
  • There are widespread threats to the privacy of individuals contained within this legislation, which seeks to institutionalise a broad, pervasive database that links multiple other databases containing individual’s personal information.
  • This part of the Bill completely undermines all the safeguards that do exist within it, since citizens cannot access these safeguards without co-operation from the authority which is arguably in a position of conflict of interest.
  • The Supreme Court’s Judgments on making Aadhaar as a mandatory document
  • The Supreme Court in its interim order in October 2015 made it clear that the Aadhaar scheme cannot be made mandatory till the matter is finally decided “one way or the other”.
  • A three-judge bench, comprising justices J. Chelameswar, S.A. Bobde and C. Nagappan, said “UIDAI/Aadhaar will not be used for any other purposes, except PDS, kerosene and LPG distribution system" nut it will not be mandatory.
  • While during one of the hearings, the Supreme Court had progressively said that the rights to liberty and freedom of expression cannot survive if the right to privacy is compromised.
  • The Supreme Court’s oral observations on 27 March 2017 clarifies that UIDAI has set the stage for the 12-digit Unique Identification (UID) numbers being used as the basic identity proof for all residents.

Current Affairs for IAS

Can the Right to Privacy become an integral part of Fundamental Rights?

  • Mukul Rohatgi, attorney general, while defending the validity of Aadhaar in the apex court, had argued before a three-judge Bench in July 2015 that no less than a "nine-judge Bench is required" to resolve whether or not the right to privacy is a fundamental right because an eight-judge bench had ruled in 1954 that it was not a fundamental right. So, it was completely wrong for smaller benches to say the right to privacy can be read into Articles 21 or 19.
  • The judgment held in 1954, Mukul Rohtagi read out that when the makers of the Constitution chose not to set down for constitutional limitations by recognising the fundamental right to privacy, “there is no justification for importing into it, a totally different fundamental right by some process of strained construction”.
  • Mukul Rohtagi also mentioned another judgment of the Supreme Court by a six-judge bench in 1963 which hold out that “the right of privacy is not a guaranteed right under our Constitution”.
  • While drafting the Constitution, amendments were moved to insert safeguards against search and seizure within the fundamental rights chapter.
  • While making of the Constitution, Dr B.R. Ambedkar pointed out that these upholds were already provided by the Code of Criminal Procedure but he agreed that inserting them to the Constitution would make it impossible for the legislature to tamper with them.

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Conclusion

One of the very first plea of a retired Karnataka High Court judge, K.S. Puttaswamy, who said that the entire Aadhaar scheme should be eliminated as it is neither backed by law, nor constitutional provisions and yet, various social welfare schemes were being linked to the Aadhaar card. But, now the Aadhaar Scheme is backed by law and it has constitutional provisions also. One of the concerns is that irrespective of discussing various aspects of Aadhaar Bill, the Government chooses to bypass the upper house discussion.

During one of the early hearings of the Supreme Court in 2015, Mukul Rohtagi, attorney general, was seeking to form a bench of nine judges, but since then no constitution bench was constituted between October 15, 2015, and March 4, 2017, there was no entity which could have taken cognisance of the violations of the court’s order.

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