By Dr Usha Ramanathan

The three-judge bench of the Supreme Court hearing the cases challenging the UID/Aadhaar project has decided that there “appears to be certain amount of apparent unresolved contradiction in the law declared by this Court” in relation to privacy as a fundamental right.

It worries the court that reading the 1954 judgment in MP Sharma’s case and the 1963 judgment in Kharak Singh “literally” and accepting it as “the law of this country”, would denude “the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21” of “vigour and vitality”. Yet, the judges see a “certain amount of apparent unresolved contradiction” in the decisions, and, in the interests of “institutional integrity and judicial discipline”, they have decided to refer the case to be resolved by a larger bench. That is their view, and the case has moved on.

The challenge to the UID project is, of course, much more than privacy. Much, much more. Convergence, surveillance, national security, matters of personal liberty, the power the data controller wields over the data subject, the inversion of the relationship between the state and the citizen, exclusion, data as property, the failure to make a law, the deliberated flouting of court orders, the conversion of voluntary enrolment into mandatory enrolment on threat of being left out, untested biometrics, no informed consent about the uses to which the data will be subjected, the absence of an exit option to get out of the UIDAI data base, the lack of accountability if there is a failure in the system and someone suffers in consequence, the handing over of the NPR data to the UIDAI which will then ‘own’ it (according to the notification that set it up) ….

The upside is supposed to be its potential to plug the leaks and exorcise the ghosts – a claim that rests on faith in technology generally, and not on the way the UID project has unfurled. The rampant outsourcing of data collection, the private entrepreneurs who have been inducted to collect the data, the difficulty for manual workers, for instance, to use their fingerprints as their signature, the foreign firms who hold and manage the data and who have uncomfortably close relationships with American and French intelligence agencies…. The cases before the court list them out comprehensively.

The Attorney General claims the 90 crore people they say have been enrolled did so voluntarily, and with informed consent. That the flouting of orders of the court that said UID cannot be made mandatory for availing services, and the threat of exclusion from services and scholarships, and the inability to get married, register property or rental agreements or marriage, explains why people felt pushed to enrol – demonstrates what a long way that was from volition and consent. This makes the interim order of the court of extreme significance. What does it say?

One, that the government shall widely publicise, in the electronic and print media including radio and television networks, that it is not mandatory for a citizen to obtain an Aadhaar card.

Two, the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.

Three, the UID number or Aadhaar card may be used in the PDS “in particular for the purpose of distribution of foodgrains etc., and cooking fuel, such as kerosene” and in LPG distribution. This, of course, excludes those requiring state assistance from the right to privacy, and it is not clear why the court thought that waiving the right to privacy of the poor was all right. In any event, even here, the rule of ‘no compulsion’ applies – that production of the Aadhaar card cannot be a condition for getting what is otherwise their due; and nobody can be compelled to enrol on the UID data base.

Importantly, the UID number “will not be used by the respondents for any (other) purpose”. School admissions, scholarships for students, visiting prisoners in jails (as has been ordered by the Telangana government), passport verification, banks, registration of marriage, wills, property sales or rentals, vehicle registration, mobile phones – will all be illegal after this order.

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‘Seeding’ is a matter of grave concern in the UID project. This is about the introduction of the number into every data base. Once the number is seeded in various data bases, it makes convergence of personal information remarkably simple. So, if the number is in the gas agency, the bank, the ticket, the ration card, the voter ID, the medical records and so on, the state, as also others who learn to use what is called the ‘ID platform’, can ‘see’ the citizen at will.

This idea of seeding has been put to rest by the interim order which categorically states: “The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above (for PDS and for fuel).” Seeding in various data bases will, by this order, have to cease forthwith. So, the Election Commission’s exercise in seeding their data base with the UID number will have to stop. So, too, for instance, the sharing of the NPR data with the UIDAI. This is an important privacy protection that the court has ensured till the petitions challenging the UID project is finally heard and decided. The only exception that the court has made, unsolicited it would seem, is in the event of a court directing the use of the data ‘for purposes of criminal investigation’. The UIDAI has been proclaiming that their data is incapable of being used for criminal investigation; but it seems the court has not paid heed to this cry of protest.

The government’s denial of the existence of the fundamental right to privacy is, of course, not innocent at all. This happened at the same time that the government was arguing in another court down the corridor that privacy was the reason it wants to retain the defamation clause in criminal law. It is also the time that it is considering the passage of a Human DNA Profiling Bill, aspiring to create a DNA Data Bank.

– Dr Usha Ramanathan works on the jurisprudence of law, poverty and rights. She writes and speaks on issues that include the Bhopal gas disaster, mass displacement, civil liberties, criminal law and the environment.

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