Though the government contends, in line with Constitution benches of the Supreme Court, that the right to privacy is not a fundamental right, with another Constitution bench going to examine the matter afresh, the government would do well to review its stance. For one, while SC said, in 1954 and then 1962, that privacy was not a fundamental right—the first was an eight-judge bench and the second a six-judge one—the law is not static. In today’s day and age, it is difficult to argue privacy is not a basic or a fundamental right. Indeed, various SC judgments have veered around to this view. In 1975, in Gobind vs the State of Madhya Pradesh & Anr., the Supreme Court ruled “there can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of such paramount importance as would justify an infringement of the right.” So, if the new Constitution bench was to weigh in on the side of privacy, the government will be in a soup since it has, over a period of time, made an Aadhaar linkage mandatory for a variety of services from ration cards to PAN and even phone numbers.
What makes the government position especially odd is that data security is something it too is concerned about, and this includes private data—recall the recent episode of one website claiming it had data for RJio’s customer base. At a time when India is getting more digital, and not just in payments, securing data is critical, and for that, a stringent privacy law is a must. Arguing against privacy, in any case, makes little sense since the government stance has always been that, first, the Aadhaar database of biometrics is completely secure and second, as the database does not keep information on financial or other transactions, it can never be used to breach privacy. If the government brings in a comprehensive privacy law soon and is able to demonstrate its claims on the Aadhaar database being fully secure and that it does not store transactions data, it has nothing to fear—even if the new Constitution bench says the right to privacy is a fundamental right, this will not upset the usage of Aadhaar. On the other hand, the privacy law will make citizens feel that much more secure about, for instance, digital payments and even about their data that is routinely collected by their phones and the Googles and Facebooks of the world.