Is Aadhaar Likely To Pass The Privacy Test?

“The purpose of infusing a right with a constitutional element is to provide it a sense of immunity from popular opinion and legislative annulment.”

In saying so, the Supreme Court of India recognised privacy as a fundamental right in a landmark judgment last year. But this right came with three restraints:

• there must be a law in existence to justify an encroachment on privacy.
• the restrictions imposed on the right to privacy by the State should be reasonable.
• the means adopted should be proportional to the object of the law that seeks to impose a restriction on privacy.

Starting this week, petitioners have started their arguments before the apex court that the Aadhaar Act and regulations under it don’t fulfill these tests and hence violate the right to privacy recognised by the Indian constitution. BloombergQuint spoke with constitutional lawyers to understand the fate of Aadhaar in light of the Supreme Court’s privacy ruling.

Violation Of Bodily, Decisional and Informational Privacy

The first argument against the Aadhaar Act is that it unreasonably deprives an individual’s rights to bodily, decisional and informational privacy.

The Aadhaar number, unique to every individual, requires a photograph, fingerprints and iris scan, among other things. Section 7 of the Aadhaar Act makes proof of Aadhaar necessary for getting certain subsidies, benefits and services. In the last couple of years, the government has made the unique ID mandatory for social welfare schemes like nutrition programmes, scholarship schemes and farm subsidies.

For availing all these subsidies and more, the act forces citizens to surrender their biometrics, takes away the element of consent and mandates parting with most intimate and personal information, the petitioners have argued before the court. Making social benefits, and public and private services contingent on the proof of an Aadhaar number is an unconstitutional condition. And so, the petitioners say, the law violates right to bodily, decisional and informational privacy.

Aadhaar is being mandated so that subsidies can be made available; to enlarge this to bring in the concept of violation of bodily integrity does not appeal in any significant way, Senior Advocate Aman Lekhi told BloombergQuint.

Keeping aside the constitutional objection on the grounds of privacy, the law mandates that the use is voluntary and so any notification that makes Aadhaar mandatory and dilutes it will be ultra-vires of the law itself, he added.

Senior Advocate Sidharth Luthra disagreed.

He said the contentions raised by the petitioners flow “from our understanding of bodily integrity and a legitimate argument is being made”.

The manner is which the act is drafted is very wide, leaving too much power in the hands of the government and the authorities implementing the law, he added.

No Opt-Out Provision

The second ground on which petitioners have challenged the Aadhaar Act is that it lacks an opt-out provision. The argument is that having linked their Aadhaar number to a particular service, individuals have no option to withdraw or “opt out”. The act, petitioners argue, fails to give full effect to an individual’s decisional autonomy and informational privacy to decide what information to share, when and with whom.

According to Lekhi, this argument has more to do with liberty than privacy.

But Luthra argued that the government has made Aadhaar mandatory despite the Supreme Court saying that it’s voluntary and optional. The purpose of the apex court’s orders was to give people the right to opt in or opt out and so, it is a legitimate argument that the right to privacy is being violated, he said.

Access To Private Entities

The third argument is the mandatory use of Aadhaar for services by private players such as mobile connections and banking. The petitioners argue that this does not pass the test of legitimate aim laid down by the apex court.

The petitioners’ argument is that the extension of the use of Aadhaar for identity verification by private entities or for schemes that are not funded from the Consolidated Fund of India cannot be justified. In the last one year, Aadhaar has been made mandatory for use of mobile services, filing tax returns, banking and several entities such as mutual funds, insurance companies have been allowed to use the Aadhaar architecture for authentication purposes. This, the petitioners argue, is beyond the stated or legitimate aim of the Aadhaar Act and hence unconstitutional.

The law says an individual is entitled to enroll for Aadhaar and this goes to the choice of an individual. So, a third agency cannot make the use of Aadhaar mandatory, Lekhi pointed out. But he argued that this need not be propagated on privacy grounds.

Luthra said that there is merit in the privacy argument.

The Proportionality Test

The fourth argument of the petitioners is that the Aadhaar Act fails the proportionality test laid down by the Supreme Court in its right to privacy ruling.

The petitioners have argued that the extent to which the Aadhaar Act violates the right to privacy is not proportional to its objectives, which can be achieved even through less onerous means. They have argued that the objective of the law to check welfare leakage and good governance can also be achieved, for instance, through smart cards that do not require biometric information.

It’s not a question of being disproportionate but since the norms for, let’s say, ensuring confidentiality of this information are not in place, it will give the authority room to act arbitrarily and for this reason it is bad, Lekhi explained. Additionally, just because there are alternatives doesn’t make any other choice unconstitutional because courts don’t go into wisdom; they go on legality. But what is wrong here is the language in the law that allows use of Aadhaar for ‘any other purpose’, he added.

Today is the second day of the petitioners’ arguments in the Supreme Court. Luthra said in the light of its right to privacy ruling, if the court finds that the entire law is unworkable, it can strike it down entirely. Alternatively, like the courts have done in the past for various legislations where they have found them to be workable in parts, they can read down portions of it. This is more likely the way this case will go, Luthra added.