The government's idea of Aadhaar, as a mandatory factor to live as a law-abiding citizen, hinges upon what the Supreme Court's constitutional bench is about to rule on 'Right to Privacy' issue.

The government's idea of Aadhaar, as a mandatory factor to live as a law-abiding citizen, hinges upon what the Supreme Court's constitutional bench is about to rule on right to privacy issue. The question is whether privacy is a fundamental right of the citizen or simply a right offered by common law. And the Supreme Court's answer will be historic as it will set the precedent for many more litigations that are yet to come on Aadhaar.

Most importantly, it will spell out whether the government can pursue its current course — making Aadhaar mandatory for almost everything Indians do, ranging from availing benefits of government schemes to ruling tax returns.

So far, the government has gone ahead with its plan to make Aadhaar number mandatory for more number of activities even when the privacy confusion persisted. These include filing tax returns, operating bank accounts, vehicle registrations (in certain states) and, of course, avail government schemes. Of these, the original idea was only to use Aadhaar to facilitate transfer of government schemes but later the government widened its ambit even when there is a case pending in the apex court.

Till now, there is no clarity as far as the law that governs the privacy of citizens. There are two earlier judgments on this — one by six-judge bench and other by an eight-judge bench, wherein it was held that right to privacy was not a fundamental right of the citizen. But, since then, smaller benches have been maintained that privacy is indeed a fundamental right. This led to more legal battles between various groups and the government, even as Aadhaar was made mandatory for more and more services.

The government received a minor setback last month, when a regular bench of the Supreme Court ordered a partial stay on Section 139 AA of the Income tax Act pending the pleas that Aadhaar infringes right to privacy before the constitutional bench of apex court. The ruling simply meant:

Those who have an Aadhaar number already will still have to seed it with PAN when filing the IT returns, but the government cannot force those who don't have an Aadhaar card as yet, to get one to file their tax returns if they have a PAN. But, on a closer look, the order is neither a victory nor a defeat for the Modi government. It only said wait a little for our answer till the constitution bench make up its mind. That time has come now.

Why is privacy such a big debate, especially in context of Aadhaar? Since the time of enrolling, a citizen offers his biometric data, address and a brief personal profile to the government. The fear, as highlighted by the privacy rights activists, is that the deep state will misuse this data to hunt down people they don't like. That explains a number of pleas in the court to restrict the use of Aaadhar as a voluntary option and have stronger framework to protect the citizens from privacy invasions by the deep state.

Going by the contours of the Aadhaar Act, even the Unique Identification Authority of India cannot share the personal information available under Aadhaar records with any agency unless there is an order from a district judge. On issues of national security, only a joint secretary level officer can authorise access of personal data, that too after getting an order from the central government.

But, that's in theory. There have been reports of Aadhaar data leakage. But, as this article pointed out, this shouldn't be the primary subject of the Aadhaar debate, for the simple reason that much of the personal information of every citizen is already accessible to the government (and even various private service providers) through various means.

In reality, the government doesn't really need an Aadhaar number to dig out someone's personal information. The idea is not to say that Aadhaar holder doesn't require a right by law to keep his information secret from the government/public access. But, let's remember that most of us willingly give away personal information to mobile phone service providers, e-commerce firms and online shopping portals that are often shared with other entities for business purposes.

If Supreme Court's Constitution bench rules that right to privacy is indeed a fundamental right of the citizen, it will mean a major setback to the government plan, which wants to make Aadhaar mandatory for every citizen. Such a ruling will have a bearing on all other litigations, with respect to Aadhaar, in all courts in the country. The government will automatically be on backfoot and it cannot force the unique number on the citizen for every aspect of governance. In other words, Aadhaar, as the government envisages today, will eventually see a natural death. It will be limited to what it was originally made for-transfer of government benefits.

No doubt, the Aaadhar is a revolutionary step India has taken that is fundamental to the Director Benefit Transfer (DBT) programme conceptualised and executed by two successive governments. Certainly, it has helped to plug subsidy leakages to a significant extent. Much work and investment have gone into the institution of Aadhaar-mechanism. Already 115 crore Aadhaar cards have been issued so far.

The point here is it is the government's task to convince the apex court and the general public that every concerns on privacy issues are addressed to take the Aadhaar programme ahead. The Aadhaar scheme is critical for the new economic structure which is on the lines of certain number of developed nations with a similar unique identity structure for their citizens. For this, the government needs to make legislations that addresses concerns on data privacy laws, something even Nandan Nilekani, the architect of Aadhaar, had mooted earlier.

More than what country's top court says on this issue, right to privacy and individual freedom are democracy's basic commitments to its stakeholders and it's the job of the elected government of the day to fulfill that promise. The lawmakers must do what they are supposed to do at this juncture — make data privacy laws and thus help Aadhaar emerge as a winner in the new economic structure.