1. Aadhaar card: Supreme Court hints it could plump for privacy

Aadhaar card: Supreme Court hints it could plump for privacy

'In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy', the Supreme Court observed on Tuesday.

By: | New Delhi | Published: July 19, 2017 6:06 AM
Supreme Court, Aadhar card, apex court The regular bench hearing the Aadhaar cases will subsequently decide every challenge to scheme in due course on a case-to-case basis, the apex court said. (PTI)

“In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy,” the Supreme Court observed on Tuesday, putting a question mark on the government’s apparent effort to make the unique identification number Aadhaar a must for access to assorted state-sponsored doles and services as well as for taxation and other aspects of regulatory governance.

A five-bench Constitution bench headed by  Chief Justice JS Khehar set up a nine-judge bench to decide whether right to privacy can be declared as a fundamental right under the Indian Constitution.

The larger bench headed by the CJI will assemble for a day on Wednesday to decide the limited question before proceeding further with the other Aadhaar cases. It would examine the correctness of the two earlier judgements.

The two earlier judgments were delivered by six-judge and eight-judge benches in the cases of Kharak Singh and MP Sharma, respectively, in which it was held that right to privacy was not a fundamental right. Smaller benches of two and three judges after these two rulings had consistently maintained that privacy is a fundamental right.

The regular bench hearing the Aadhaar cases will subsequently decide every challenge to scheme in due course on a case-to-case basis, the apex court said.

On June 9, the court upheld the validity of a recently inserted Income Tax Act provision making Aadhaar mandatory to apply for PAN cards and file tax returns. Even as the court upheld Parliament’s legislative competence to enact the relevant Section 139AA of the I-T Act — which was inserted through the Finance Act, 2017 — it allowed those who do not have the unique ID to file their income tax returns till the larger issue of right to privacy and concerns that the Aadhaar scheme affected the human dignity are decided by a Constitution bench.

“There is a battery of judgments saying privacy is a fundamental right, we cannot ignore them. We have to give serious thought to this question,” justice J Chelameswar, who was a part of the five-member bench, observed.

Citing the binding nature of past precedents, attorney general KK Venugopal reiterated his predecessor Mukul Rohatgi’s stand that right to privacy is not a fundamental right under Article 21 and Article 19 (1)(d) of the Constitution, but submitted that it is a “common law right”. He submitted that even as the founding fathers of the Constitution gave its citizens all kinds of fundamental rights, the right to privacy was “consciously avoided”. Senior advocate Gopal Subramanium, appearing for one of the petitioners, however, submitted that categorising privacy as a common law right was “quite depressing”. He pointed out that privacy is an “inalienable human right” as said in the United Nations Human Rights Declaration.

Speaking to FE, member of Parliament and former additional solicitor general Vivek Tankha said that apart from addressing the issue of privacy, the SC will also have to take into the account how the government has gone ahead in expanding the whole Aadhaar scheme when it had got “limited relief” from the court. “The larger issue before the SC is whether the government should have gone ahead with its various schemes. There is conflict and the government will have to clarify its actions… It may not be that the government has directly violated the orders, but has definitely gone against the spirit of the SC decisions,” Tankha said.

However, supporting the government’s stand, former solicitor general and senior advocate Mohan Parasaran said that nobody can claim “unchartered privacy”. “It is up to the government to bring in any scheme for larger good — public order, decency, morality and national security. Besides, Aadhaar has been the policy decision of two successive governments. The SC can’t question the wisdom of the two governments who have bought proper legislations on the issue,” he said. Parasaran further added that a small minority that doesn’t want to part with its biometric details can’t frustrate the well-planned scheme, which has been already accepted by the majority of the population. However, he said that it is the government’s obligation to ensure that such personal details are not leaked, otherwise it will be liable to damages.

The court was hearing a batch of 22 petitions alleging that the Aadhaar scheme, which requires the mandatory parting of biometric details like iris scans and fingerprints, is a violation of citizens’ right to privacy.

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A bench led by the CJI had on March 27 made it clear that Aadhaar cannot be made mandatory by the government for extending benefits of social welfare schemes but can be enforced for “non-benefit” purposes like filing of I-T returns and opening of accounts. The  five-judge Constitution bench had on October 15, 2015, extended use of the Aadhaar card on voluntary basis to avail other government schemes like the Mahatma Gandhi National Rural Employment Guarantee Scheme, Pradhan Mantri Jan Dhan Yojana, employee provident fund and pension schemes. The social welfare schemes, aimed at reaching the doorsteps of the “poorest of the poor”, were in addition to the other two schemes — public distribution system and LPG schemes — allowed earlier by the apex court in its August 11, 2015, interim order.

  1. R
    Reader
    Oct 12, 2017 at 5:25 am
    A centralized and inter-linked biometric database like Aadhaar will lead to profiling and self-censorship, endangering freedom. Personal data gathered under the Aadhaar program is prone to misuse and surveillance. Aadhaar project has created a vulnerability to identi-ty fraud, even identi-ty theft. Easy harvesting of biometrics traits and publicly-available Aadhaar numbers increase the risk of impersonation, especially online and banking fraud. Centralized databases can be hacked. Biometrics can be cloned, copied and reused. Thus, BIOMETRICS CAN BE FAKED. High-resolution cameras can capture your fingerprints and iris information from a distance. Every eye hospital will have iris images of its patients. So another person can clone your fingerprints and iris images without your knowledge, and the same can be used for authentication. If the Aadhaar scheme is NOT STOPPED by the Supreme Court, the biometric features of Indians will soon be cloned, misused, and even traded.
    Reply
    1. R
      Reader
      Oct 12, 2017 at 5:24 am
      UK’s Biometric ID Database was dismantled. Why the United Kingdom's biometrics-linked National Identi-ty Card project to create a centralized register of sensitive information about residents similar to Aadhaar was scrapped in 2010?? The reasons were the massive threat posed to the privacy of people, the possibility of a surveillance state, the dangers of maintaining such a huge centralized repository of personal information, and the purposes it could be used for, and the dangers of such a centralized database being hacked. The other reasons were the unreliability of such a large-scale biometric verification processes, and the ethics of using biometric identification.
      Reply
      1. R
        Reader
        Oct 12, 2017 at 5:24 am
        The US Social Security Number (SSN) card has NO BIOMETRIC DETAILS, no photograph, no physical description and no birth date. All it does is confirm that a particular number has been issued to a particular name. Instead, a driving license or state ID card is used as an identification for adults. The US government DOES NOT collect the biometric details of its own citizens for the purpose of issuing Social Security Number. The US collects the fingerprints of only those citizens who are involved in any criminal activity (it has nothing to do with SSN), and the citizens of other countries who come to the US.
        Reply
        1. N
          nilikash
          Jul 24, 2017 at 7:21 pm
          Many people facing problems while linking AAdhar with pan and banks and mobile number. Errors are aadhar not active, needs biometric update etc. If Aadhar is getting such type of errors now and when it gets mandatory for all transactions or any other purpose and this things happen then what the government will say the person is not valid or Aadhar. If you are going so private by knowing individuals biometric and iris and then also unsuccessful. Before Aadhar Passport was only where iris and biometric are taken. Then also duplicate or false passport are prepared and all things are going on. So just harassing citizens and let them run all over from one office to another make no sense.
          Reply
          1. K
            kunal
            Sep 6, 2017 at 7:15 pm
            very true sir. I am unable to ekyc since I am suffering from acute seating of palm.Now after verdict,will i be debarred from my mobile number?
            Reply
          2. S
            Sadasivan
            Jul 19, 2017 at 7:41 pm
            Globalist Elites' favourite phrase," FOR THE GREATER GOOD",which is actually for their own personal good. In a Republic The Minority's apprehension of Ethnic Cleansing,under a repressive regime,wealth and data loss,the latter possibly making the Card Holder a criminal,by misuse by the vested interests,are fears,which is NOT at all compensated by any claim,whatsoever.
            Reply
            1. S
              Sadasivan
              Jul 19, 2017 at 7:31 pm
              In a Republic,"the small Minority" ,has its Rights,especially,if it is correct and its apprehensions are -well-founded.As rightly pointed out,Human Dignity and Safety ,are the basis of Privacy. Though many claims are made,there is no compensation at all,as regards Privacy,in the Aadhaar Scheme.
              Reply
              1. S
                Sadasivan
                Jul 19, 2017 at 7:23 pm
                Thank You,Your Lordships!
                Reply
                1. S
                  Sankalp
                  Jul 19, 2017 at 5:34 pm
                  I can't believe this comment section. Do you people really think that folks who aren't opting for Aadhar are the baddies only? The government is asking to take our bio-metric scans that are unique to everyone but in return is giving no guarantees that they will not share it with companies or foreign governments. Basically they have the freedom to do whatever they want with it. Am I the only one seeing hearing the bells of warning on this? Plus Aadhar itself is a flawed document that is based on documents like voter card, license etc things that have been known to be made fraudulently. How in heck does this make Aadhar a full proof corruption measure? In the past 3 years I have seen 3 servants around my neighborhood who belong from Nepal and they got Aadhar made by paying mere 200 Rupees. I'm sorry, if you folks feel safe with Aadhar, by all means enjoy it, but do not force me to give up my information. I just don't feel comfortable with the government's at ude.
                  Reply
                  1. D
                    Das, S
                    Jul 19, 2017 at 3:14 pm
                    Mandating Adhaar card and linking it with PAN card should be essential to curb fraudulence and curb Bangladeshi and Pakistani intrusion. I am surprised why such hearing is needed at all?
                    Reply
                    1. Prasanta Chandra Dash
                      Jul 19, 2017 at 11:25 am
                      What about strip search at US airports under watch of CCTV cameras? what about examining eyes by a doctor with guaranty of data protection? What about finger prints of all five fingers on service files of government employees? What about CCTV cameras in class rooms and exam centers? what about physical examination of young men with bare bodies aspiring army and CRPF? The questions will go on and on without a definite answer for privacy. Will we undo all the established systems. If some one does not like to promote transparency in governance in every possible way then it is only him to be blamed. Linking of aadhar has a far reaching effect to curb corruption. SC appointed SIT which is suggesting means to tackle black money should be involved it it.
                      Reply
                      1. R
                        RawTruth
                        Jul 19, 2017 at 11:04 am
                        These unscrupulous people never objected when the thumb impressions of the poor were taken by Govt or when their photographs were taken for Passport. These elitist would be happy to provide finger prints to get visa of western countries but since Aadhar is meant to close there Public fund siphoning shops so now we hear all these noises for privacy.
                        Reply
                        1. R
                          Rameswar Pattanayak
                          Jul 19, 2017 at 8:51 am
                          OK. Millions of scrupulous person will get opportunity to use multiple iden y and impersonation with criminal intent in absence of Aadhar. It seems it is guaranteed in the cons ution.
                          Reply
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