Aadhaar and right to privacy: Why India has to set tone as the largest digital democracy

In the digital age, with more and more users coming online by the day, it is set to have a huge impact on the digital user and their confidence to stay online.

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Legal experts believe such a right protects personal liberties and its absence can allow a possible surveillance mechanism by both the state and private players.

The debate around Aadhaar and right to privacy has intensified over the past few days. A nine-judge Constitution Bench of the Supreme Court is deliberating whether the right to privacy is a fundamental right or not. Even as the matter is decided, the state is moving swiftly ahead with the Aadhaar project and mandating the public to enroll and link Aadhaar to various personal entities that arguably encroach on the right of privacy of an individual. Legal experts believe such a right protects personal liberties and its absence can allow a possible surveillance mechanism by both the state and private players.

In the digital age, Aadhaar and the push for digital India means a world where the government and private players could have maximum access to your personal information, communication, whereabouts, financial dealings, day-to-day transactions, purchases’ history and other data that you would want to keep to yourself or to a selected audience. In the digital age, with more and more users coming online by the day, it is set to have a huge impact on the digital user and their confidence to stay online.

Raman Chima, co-founder of Save the Internet Foundation and and global policy director at digital rights advocacy group Access Now, pointed out that according to laws like the International Covenant on Civil and Political Rights, states do monitoring but after passing certain tests of necessity. “Specific surveillance or monitoring if done after passing those certain tests laid down in our fundamental rights is reasonable.” He added that “mass surveillance, on the other hand, would not be something that would be acceptable.”

“India is the largest digital democracy, having the second largest internet userbase in the world after China. Hence, privacy on the internet also assumes importance. As more and more people come online, they would be less aware of how much of their private data is being collected by either the government or private organisations,” Chima said, adding that as a result the individual must the power to limit or control that collection and prevent the misuse of that information.

According to Mishi Choudhary, president and founder of Software Freedom Law Centre, “In the age of biometric identification, social profiles, and cashless economic transactions, not having such a right damages an essential component of all personal liberties and other fundamental rights that we have which cannot be freely exercised. This leaves the possibility of a surveillance mechanism both by private companies as well as the government.”

The apex court is hearing the matter of existence of fundamental right of privacy with regards to the case Justice K.S. Puttaswamy and others versus Union of India and others. The court on Thursday questioned the reservations to allow government access to private data when people surrender such information to private players easily. However, the question of autonomy seems to play out in such circumstances.

“If a person voluntarily gives up some information to avail some subsidy, that should not affect their right to privacy but such data should be used only for the purpose its been collected, only by persons who are authorised to access it and must be secured,” Mishi said, adding, “Privacy, particularly when we talk about the net, really means three–secrecy, anonymity and autonomy. These three are the principal components privacy. With respect to each, further consideration shows that it is a precondition to the order that we call “democracy”, “ordered liberty”, “self-government”, to the particular scheme that we call in the United States “constitutional freedom.”

The issue of protection of collected demographic and biometric data by the Aadhaar issuing UIDAI and liability is also confidence-bearing. Since the Aadhaar was passed as a money bill and as a result, UIDAI and its agencies were not given corporate entity status. Hence, they can’t be held liable or prosecuted. The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 doesn’t allow a person to go to court if his or her data is misused or leaked. Only the UIDAI has that authority. Furthermore, the person can’t demand access to their data as well. Aadhar was passed as a money bill so it is not giving the corporate entity status UIDAI and its agencies so that they can be held liable and prosecuted.

On July 19, 2017, Minister of State for Electronics and Information Technology P.P. Chaudhary said in a written reply in Lok Sabha that “there has been no leakage of Aadhaar data from UIDAI. However, it was found that around 210 websites of Central Government, State Government, Departments including educational institutes were displaying the list of beneficiaries along with their name, address, other details and Aadhaar numbers for information of general public.”
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