The Aadhaar judgment, read together with the privacy judgment reveal that the Supreme Court of India takes data protection and privacy seriously.

Aadhaar, the pet project of two successive governments, is here to stay: at least for now.

With four judges of a five-judge bench ruling in Writ Petition (Civil) No. 494 of 2012 in the matter of Justice KS Puttaswamy (Retd) and Another vs. Union of India and Others that The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (hereinafter, the ‘Aadhaar Act’) was not ultra-vires of the Constitution, the Aadhaar Act has found sanctity in law, and until such time as is either repealed or found ultra vires by a larger bench, will remain in force in the Republic of India.

The Hon’ble Justice DY Chandrachud, the sole dissenting voice in the Aadhaar judgment, in Part L Paragraph 3 of his judgment ruled that the Aadhaar Act in its entirety was unconstitutional owing to the way in which the Aadhaar Bill was introduced, thereby taking away the power of the Rajya Sabha to amend the Bill.

What is interesting to note from the 1,448 page ruling of the Hon’ble Supreme Court of India in the Aadhaar case is the fact that its landmark judgment in Justice KS Puttaswamy v. Union of India (ie the privacy judgment) has been used extensively to debate and put to rest the contentions involving the largest government promoted unique identification number providing exercise for citizens.

Today, India is among the jurisdictions which considers privacy to be a fundamental right. As Justice Chandrachud wrote in paragraph 127 of the privacy judgment: “The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position.”

He further writes in paragraph 297 of the same judgment that, “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality.”

In a world where information on almost anything and everything is available at our fingertips, the sanctity of privacy has continued to deteriorate.

With social media networks promising to connect the globe over the world wide web using a device as small as a smartphone or watch and a basic internet connection, the idea of something being private in today’s highly globalised and inter-connected world is fading faster than one can even say ‘buffering’.

As rightly set-out in the Aadhaar judgment, social networks and certain websites have access to all information shared with them and also have access to certain personal information including the permanent account numbers and credit and/ or debit card details of its users. Owing to a world without borders on the web, such information is often stored offshore, and usually, on account of differing laws on data protection, such data may occasionally be breached. It is not out of place to mention here that the Government of India is officially following up with one of the largest social networks in the world in light of the recent data breach on its platform.

The concept of big data, which was virtually unheard of until fairly recently, has now taken center stage and today, there are judgments from courts around the world that have looked at privacy from the point of view of human dignity and natural rights, rather than from a philosophical point of view as was done in the past. Privacy, at least in India today, has been ruled to be a fundamental right bestowed by the Constitution of India.

The privacy judgment and the Aadhaar judgment together raise very interesting points. The Hon’ble Supreme Court has now ruled that metadata collected under the Aadhaar programme cannot be stored, and stopped the government from storing such data for more than six months, exceptions, however, being in instances when such data is required by courts or in connection to some on-going proceedings.

One of the contentions of those opposing the constitutional validity of Aadhaar was the fact that the legislation would infringe on the privacy of the individual.

In paragraph 585 of the privacy judgment, The Hon’ble Justice SK Kaul said, “The growth and development of technology has created new instruments for the possible invasion of privacy by the State, including through surveillance, profiling and data collection and processing. Surveillance is not new, but technology has permitted surveillance in ways that are unimaginable… However, “profiling” can also be used to further public interest and for the benefit of national security.”

Further in paragraph 586 of the privacy judgment, Justice Kaul writes, “The security environment, not only in our country, but throughout the world makes the safety of persons and the State a matter to be balanced against this right to privacy.”

National security is a concept that is seldom defined, but features arguably in almost every major issue or legislation proposed by any government. In a post 9/11 world, the concept of national security has further taken prominence. Warfare and crime are both no longer conventional, but like technology, have advanced even to the cyberspace. In such scenarios, the privacy of the individual is often not considered to be sacrosanct.

The Aadhaar judgment, read together with the privacy judgment reveal that the Supreme Court of India takes data protection and privacy seriously.

For governments like ours, however, dealing with the constant barrage of cross-border infiltration and with government agencies tasked with identifying and neutralising threats from outside the country as well as those who have managed to sneak into it, privacy of the individual may at times have to be sacrificed at the altar of national security.

While believers of privacy-at-all-costs would be appalled to even think of such scenarios and would be aghast at its mentioning here, those who understand security implications and have a basic understanding of the law would know that there are regulations governing such procedures as well, and any surveillance mechanism that is not in line with the procedures mandated will not stand the scrutiny of courts.

The privacy of the individual cannot should not mean that the individual has absolute privacy. In fact, the privacy judgment (also quoted in the Aadhaar judgment) raises the point that a person cannot claim privacy when the person himself has posted something vital on a social network.

It is humbly submitted here, with the utmost respect to every judgment in this regard, that the words in Article 21 of the Constitution of India speak about a scenario where the procedure established by law would in effect deprive an individual of his right to life and personal liberty. In other words, by using laws subject to the Constitution of India, a person may be deprived of personal liberty (including privacy).

Whether such depriving of personal liberty stands the test of judicial review is a matter for the respective courts to decide, but can the State engage in this state-backed depriving of personal liberty in accordance with law? Absolutely. However, it should be remembered here that despite all its power, the State will not be able to suspend Article 21 during an emergency as ruled by the nine-judge bench in the privacy judgment.

“No civilised State can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution,” wrote Justice Chandrachud while overruling the judgment of the Supreme Court in Additional District Magistrate of Jabalpur v. Shiv Kant Shukla (the habeas corpus case).

In fact, Justice Kaul rightly said in his separate judgment that the majority opinion in the Habeas Corpus Case must be “buried ten fathom deep, with no chance for resurrection.”

This brings us to a point oft raised by commentators. To answer them bluntly, it is pointed out that it is not the legislature, the executive or the judiciary which is supreme in the Republic of India: it is the Constitution of India which reigns supreme. Every legislation, every regulation and every decision of the legislature that does not adhere to the principles enshrined in the Constitution of India is subject to being struck down by the Supreme Court and/ or the respective high courts. While some may call this judicial overreach, it’s best to look at this as a safety-valve that ensures that the fundamental rights of India’s citizens are always protected and the State cannot deprive any citizen of these rights without following the procedure established by law.

The habeas corpus case was considered by legal doyens as one of the darkest hours for the judiciary in India: the privacy judgment, however, one of its finest.

One thing is for certain. Whether you have your Aadhaar or not, or whether you yourself value your privacy or not, know this: The Supreme Court of India values your privacy enough to grant it the sanctity of a fundamental right and no government, no matter how big its mandate, can do a thing to deprive you of this right—at least not on the judiciary’s watch.

The writer is an advocate at the Bombay High Court.