IS RIGHT TO PRIVACY A FUNDAMENTAL RIGHT UNDER THE INDIAN

CONSTITUTIONAL SCHEME AND IS UIDAI VIOLATIVE OF INDIVIDUALS

RIGHT TO PRIVACY?

The unique identity of this project has been depicted to be a new face of development that
technology could bring out. The UID project has also been sold to masses in India as a solution
for accessibility to the service delivery, and as a tool for the eradication of ill-governance.
Though the UID tries to build up recognition and legitimacy on the basis of transparency and
delivery of good governance there are also issues of larger importance that have gone unnoticed
by many. These include issues of the privacy and dignity of an individual being affected by the
proposed UID scheme could cause. It is natural to have apprehensions and doubts about the
effectiveness of implementation of the UID projects. Thus, it is important to analyse the socio-
political effects in the context of the present political economy in India.

The UID scheme could be viewed as an intended shift in the relationship between states, the
markets and the citizens in the new age of globalization and technological advancement. It is
very much important to note that, by merely providing a UID number to an individuals there is
no guarantee of developmental accessibility of rights and benefits that would be ensued to the
poor and marginalized communities in India.

The National Identification Authority of Bill India 2010 which has been mooted for the purpose
of providing legal status to the UID project has raised many issues regarding the privacy issue
i.e., is the UID affects the right to privacy under Indian constitution1.

MEANING OF THE TERM RIGHT TO PRIVACY:

The right to privacy as defined in the New Oxford English Dictionary, is the absence or
avoidance of publicity or display; the state or condition from being withdrawn from the
society of others or from public interests; seclusion.

The Blacks Law Dictionary refers to privacy as the right to be let alone; the right of a
person to be free from unwarranted interference by the public in matters with which the
public is not necessarily concerned. Therefore, the right to privacy, notwithstanding its
differing connotations, remains a private right of an individual2.

1
http://cis-india.org/internet-governance/blog/privacy/privacy-uiddevaprasad
2
http://books.google.co.in
Right to privacy is a civil liberty essential to individual freedom and dignity. The right to
privacy is the hallmark of a cultured existence, as referred in the name of Louise Brandeis J
the right most valued by civilized men3.

Winfield has referred to the right of privacy as the absence of unauthorized interference with
a persons privacy of himself or his property from the public. This also manifests the legal
appreciation of the individual personality. At the international level, the international treaty on
civil and political rights and more recently, the European Convention of human rights
recognize this rights. However, the common characteristics underlying this are its being
available against the state, as is the case with other human rights.

The Indian Constitution in comparison fails to expressly recognize the right to privacy. Some
scholars contend that the whole nation of privacy is alien to Indian culture.

In the celebrated case of ADM Jabalpur v Shivakant Shukla4, the Supreme Court sought to
determine if the right to personal liberty is limited by any limitations other than those expressly
contained in the constitution and statue law.

According to Khanna J, Article 21 is not the sole repository of the right to personal
libertyno one shall be deprived of his life and personal liberty without the authority of laws
follows not merely from the common law, it flows equally from statutory law like the penal
law in force in India.

This establishes that the right to privacy need not be expressly guaranteed, but may be implicit
because of its inclusion in common law. The Supreme Court in recent years through judicial
activism has preferred to read into the constitution a fundamental right to privacy by a
creative interpretation of the right to life guaranteed under Article 21. In case of judicial
pronouncement categorically rejected that there exists any right to privacy.

In the case of R.Rajagopal v State of Tamilnadu5 and also in the case of Govind v State of
Madhyapradesh6, observed that this right emanates from Article 21 but comparatively plain
reading of Article 19 it gives you an idea of liberty as defined is wide enough to indicate
the right to be let alone. However the Indian higher judiciary has remained rather vague, to
the extent of delivering contradictory rulings.

3
http://www.brandeis.edu/legacyfund/bio.html
4
AIR 1976 SC 1207
5
AIR 1995 SC 264
6
AIR 1975 SC 1378
On the basis of a dispassionate perusal of the aforementioned judicial rulings, it is evident that
there is an implied, unenumerated, but judicially evolved and recognized right to privacy under
the Indian Constitution.

Although the rulings of the Supreme Court in the cases of the MP Sharma and Kharak Singh,
already referred to, denied the existence of such a right. The shift in judicial interpretation is
most notably observed in the following Menaka Gandhi Case, wherein this right is
recognized, subject to legal restrictions satisfying the requirements as laid down in the Menaka
Gandhi case.

However, if the courts were to address the issue of right to privacy under Article 21 afresh,
there is a little doubt that it would conclude that there does exist a right to privacy. Such a
statement will not be valid law unless stated by a bench of more than six judges so as to
effectively overrule Kharak Singh case.

Privacy is also a feature of the dignity of an individual that the preamble to the constitution
assures every individual. Thus the right is not merely a negative mandate upon the state not to
encroach upon the private space of the individual but is also a positive affirmation on the state
to create adequate institutions that would enable one to effectively protect his private life7.

Thus the right to privacy has a strong constitutional edifice, which could if clarified by an_
appropriate bench of the Supreme Court settle this judicial controversy at rest.

The second part of the question deals with the topic is the UIDAI i.e.., Aadhaar card
infringes, violative of the individuals right to privacy.

There are different opinions among different High Court and Supreme Court Justice and Chief
Justice., the recent opinion that was given by former Justice K.S. Puttaswamy says that
Aadhaar infringes on our fundamental right to privacy8.

The UID/ Aadhaar will not be used for any other purpose except PDS, Kerosene and LPG
distribution system. Some of the lawyer applied for the petitions where by the Supreme Court
addressing the petitioners claim that collection and sharing of biometric information, as
required under the scheme is a breach of the fundamental right to privacy, the court barred
the authorities from sharing any personal information or data collected from those enrolled in

7
http://en.m.wikipedia.org/wiki/fundamental_rights_Directive_principles_and_Fundamental_duties_of_India.
8
http://m.thehindu.com/opinion/interview/aadhaar-infringes-on-our-fundamental-right-to
privacy/article5182765.ec
the scheme except as part of a criminal investigation, with the permission of the court but
refused to accept the interim plea that ongoing UID enrolment be stopped pending settlement
of the constitutionality questions. Instead it allowed the centres plea that the question of
whether privacy is a fundamental right be referred to a constitution bench. If suppose yes, then
what would be outlines of the right to privacy, then it puts up a strong question that whether
the collection of biometric data by the UID authority of India as part of the Aadhaar enrolment
process was an infringement of an individuals privacy.

Another Attorney General Mukuhal Rohatgi9 said that the right to privacy was not a
fundamental right and clearly said that the UID/Aadhaar is No judgement explicitly cites right
to privacy as a fundamental right under article 21. Since there is no right to privacy under the
Indian constitution yet so the UID/ Aadhaar card is not the violative of the right to privacy10.

Recently, the governments chief lawyer Attorney General Mukul Rohatgi, threw a googly at
the Supreme Court when the validity of the Aadhaar unique ID project was being challenged.
The attorney general stated that there was no fundamental right to privacy and cited a
judgement by an eight-judge bench dating to 1954 to back his contention. Its true the
constitution does not mention the right to privacy anywhere and even the fundamental rights
to free and even fundamental rights- to free speech, life, movement, religion etc are subject to
reasonable limits. The question of the right to privacy is thus likely to come much lowerdown
in the striking order11.

Till recently, the right to privacy has been assumed to exist as an adjunct to the other
fundamental rights, but now that has set the cat among the pigeons by pointing to a past
judgement, the Supreme Court will have to grapple with this issue first. The problem is simple:
when the eight- bench said privacy was not a fundamental right then the smaller bench has to
undergo with the precedent judgements.

The privacy issue has become central to the debate over the legality of Aadhaar where the
government is busy collecting biometric data from residents and at some point could use the
data for ill-defined ends, including law enforcement and tracking.

9
http://thewire.in/2015/08/11/question-of-rightofprivacy-now-be-decided-by-constitutional-bench-8257/

10
http://m.thehindu.com/opinion/lead/privacy-a-nonnegotiable-right-right/articlee7519148.ece
11
http://m.firstpost.com/india/right -to-privacy-supreme-court-shut-the-door-before-aadhaar-
bolts-towards-illegality-2358402.
The issue of privacy is central to Aadhaar for four important reason:

1. First, the centre is collecting personal biometric data of individuals without any law
backing it. The UPA (United Progressive Alliance) pushed the scheme without legislation
and the Modi government continuous with some extra-legal path.
2. Second, UIDAI used many private parties to enrol and collect biometrics from people.
There can be no guarantee that the some of the collected biometric data will not remain
in private hands, leading to the possibility of misuse.
3. Third, even assuming Aadhaar is vital for identifying beneficiaries for welfare payments
there is no law guaranteeing that the data already with government will not be used for
unintended purposes or that there will be fool proof safe guards to prevent leakage of data
to unauthorised hands.
4. If privacy in not the fundamental right, the scope for misuse of Aadhaar data by
government or private sectors and interests can be immense. If government is not going
to be held accountable for the data it collects from citizens, it has no right to make this
card all but compulsory through executive fiat.

To be sure, Aadhaar has progressed too quickly and too deeply to be fully junked. Wasting the
effort would be a pity, given that it is now a primary proof of identity and more authentic than
ration cards, property documents and pan cards.

THE RIGHT TO PRIVACY IN INDIA:

It is truly unfortunate that the privacy debate in India is circling back to its initial stage in 1948-
49. While drafting the constitution amendments were moved to insert safeguards against search
and seizure within the fundamental rights chapter Dr. B. R. Ambedkar pointed out that these
safeguards were already provided by the code of criminal procedure but he agreed that adding
them to the constitution would make it impossible for the legislature to tamper with them.
Although no convincing arguments were made against the amendments, there was turmoil in
the house. The vote was deferred. Eventually the amendment did not pass through the house
but the debates were disappointing since they offered no visible reason for this choice.

However, the Supreme Court soon read the right to privacy into the constitution. Progressively,
in case after case, it realised that the rights to liberty and freedom of expression cannot survive
if the right to privacy is compromised. It began with recognising peoples rights against
government intrusion into their homes and went on to build this norm over the years across a
variety of cases.

It is this right to privacy that protects us from the indiscretions of doctors who see us at our
most vulnerable. It is the right to privacy that prevents, although fairly ineffectively, law
enforcement from listening in our phone conversations and recording them. This is all a result
of the Supreme Court regarding time after time across decades that our other rights will not
stand for much without privacy12.

The Aadhaar database is a dangerous thing in itself, Like dams that wall in enormous
quantities of water or plants storing toxic material this database could cause widespread
disaster if breached. It is necessary to take every possible precautions when building
anything this dangerous. It is also necessary that whoever puts such a hazard among us takes
full responsibility for the ill-effects if anything goes wrong. The government of India is doing
no such thing with the Aadhaar database. Despite multiple assurances of safety it has offered
citizens no guarantees of compensation or recompense if its poor choices endanger them13.

In many ways this legislation is something of a Trojan horse. We are told that its sole purpose
is the noble goal of creating a functional public distribution system. We are also told that the
sensitive information in the database is secure and inaccessible for any purpose other than
authentication. However, the legislation does a fine job of complication: in part labelled
protection of information, it begins with very promising norms about not sharing information
for purposes outside the legislation and then undoes these norms completely by creating two
enormously significant exceptions that permit the government to easily dip into Aadhaar data.

The exception permits the government to access the database in two separate ways. One way
is if a district judge orders disclosure of information. This is very dangerous if one bears in
mind that we have inadequately trained district judges all over the country and that they are not
given enough support to understand the implications of a database like Aadhaar.

District judges in far-flung districts have been authorising mass blocking of online content and
gag orders. These judges can now authorise access to Aadhaar data without any disclosure or
discussion with the citizen affected only the Aadhaar authority will have the right to contest

12
http://m.firstpost.com/india/right-to-privacy-supreme-court-shut-the-door-before-aadhaar-bolts-towards-
illegality-2358402.
13
http://m.thehindu.com/opinion/lead/lead-article-on-aadhaar-bill-by-chinmayi-arun-privacy-is-a-fundamental-
right/article8366413.ece
the order if it is so inclined. The legislation offers no avenue where the affected party may
appeal if her rights are affected. This creates a huge window for access and misuse of the
database14.

There is a second way in which the government may abuse its power and access the Aadhaar
database. A joint secretary authorised by the government can direct disclosure of information
in the interest of the national security. This direction again leaves the affected party out of the
equation and nothing in the legislation compels any kind of public or independent oversight
that may help ensure that there is no abuse of the power. While this order will be viewed by a
committee consisting of the cabinet secretary and the secretaries to the government of India in
the department of legal affairs and the department of electronics and information technology,
this is an inadequate safeguard for multiple reasons.

The safeguards contained within the Aadhaar Bill are appalling even by very outdated Indian
standards. By international standards they are laughable. The Indian standards for using
technology for widespread surveillance began with the use of the telephone. When the large
scale telephone tapping was challenged in PUCL v Union of India, the government attempted
thee very same national security argument that is being used for Aadhaar. The Supreme Court
ruled that telephone tapping would violate article 21 of the constitution unless it was permitted
by the procedure established by the law and that it would violate the right of freedom of speech
and expression under article 19 unless it came within the permissible restrictions.

The Supreme Court ruled out that the telephone tapping would violate Article 21 of the
constitution unless it came within the permissible restrictions. The Supreme Court was very
clear in this context that even when the law clearly defines the situations in which interceptions
may take place this law must have procedural backing to ensure that the exercise of power is
just and reasonable. Having insisted on the need of the power is just and reasonable. Having
instead on the need for procedural safeguards, the Supreme Court created a stopgap, interim
administrative measure that was to act as a safeguards in the absence of a statutory
mechanism15.

14
http://m.ndtv.com/india-news/is-privacy-a-fundamental-right-constitution-bench-of-supreme-court-to-decide-
120610.
15
http://m.thehindu.com/opinion/lead/lead-article-on-aadhaar-bill-by-chinmayi-arun-privacy-is-a-fundamental-
right/article8366413.ece
That this deeply inadequate stopgap measure continuous to be our sole communication
surveillance safeguard is a mark of how all governments across political lines find it difficult
to restrict their own powers to respect the rights of the people.

16
THE ISSUE OF BREACH OF PRIVACY:

Almost every country that tried to implement national identity cards based on integrated
systems had public resistance, because of concerns over privacy. There are many dimensions
to privacy of a person, privacy of communications, territorial privacy and privacy of personal
data.

Privacy of the person concerns the privacy of body and its integrity and freedom of not being
infringed upon. Privacy of communications deals with the freedom to have communications
by any means without being infringed upon by the surveillance. Territorial privacy addresses
freedom from the encroachment into domestic and official spaces by the way of surveillance.
Identity and informational privacy or data privacy deals with the protection of information
especially sensitive information. This data privacy includes this kind of issue of Aadhaar card.

It is important to note that the main privacy concerns brought by the UID projects are: territorial
and data privacy. In India, the concept of privacy in the social sphere is not as prevalent as it is
in Europe or the United States.

The UID leads to a situation of access to all sensitive information of the people enrolled in the
UID. This information could be misused by authorities. Especially those who are in higher
authorities, they take this as a weapon and try to seek their needs if the individual doesnt make
it, they the authority will misuse the identity. The risk that the UID poses to an individuals
privacy is enormous as information that is now scattered in the public domain will be brought
into one point of convergence through the UID. Further, there are issues of privacy
infringement due to the use of biometric information in the project. The collection of and
identification based on the biometric information could be understood as a breach of ones
territorial privacy and ones data privacy.

As persons are being identified on the basis of sensitive biometric information, the risk of being
profiled, targeted and marginalized by the state on the basis of this sensitive information is very
high. Hence, there is a requirement for the protection of data privacy and territorial privacy.

16
http://cis-india.org/internet-governance/blog/privacy/privacy-uiddevaprasad
The claims that the UID number will provide efficient access to development projects and
facilities should be viewed with suspicion because when sensitive information of this nature is
placed in the control of the state it gives enormous power to the state.

ISSUE OF DIGNITY:

The greatest aspect of human rights could be identified as the acknowledgement of dignity of
human beings. The UN charter and the universal declaration of human rights both emphasize
this point. Dignity signifies the innate rights of human beings to be treated with respect and
ethical conduct17.

Dignity signifies the innate rights of the human beings to be treated with respect and ethical
conduct. Dignity is an extension of the thought and the recognition that all individuals have
inherent inviolable rights18. Freedom is also an aspect that has foundations in the concept of
dignity.

In the UID project the risk of surveillance and breach of privacy clearly violates human dignity
as it curtails the freedom of choice that the human beings are able to make by placing
individuals continuously under the threat of intrusive surveillance by the state and public
domain.19

The factor of the UID scheme that truly robs human beings of their dignity is the treatment of
human beings as mere numbers. In case that an individual UID number is manipulated used by
someone else fraudulently, lost or a technical problem occurs. Actually, in the claim of the
public interest the UID scheme any cause more harm than good to the rights of the citizens
which are preserved in the constitution of India 1950.

Furthermore, the developmental claims by the UID of security and administrative efficiency
cannot be a valid justification for infringement on the right of life under Article 21 and the right
of freedom of expression and movement as provided in the article 19 of the constitution of
India 1950.

Identifying the right to privacy and dignity is very important for the purpose of evaluating the
impact that the UID scheme will cause upon these rights.

17
Oscar Schachter, Human Dignity as a normative Concept, 77 The American Journal of International Law,
848-854 (1983).
18
Ibid
19
http://www.un.org/en/universal-declaration-human-rights/
RIGHT TO PRIVACY AND THE CONSTITUTION OF INDIA:

There is no direct provision providing for the right to privacy in the constitution of India. Hence
the right to privacy needs to be understood on the basis of the jurisprudence developed by the
constitutional courts in India20.

Furthermore, the reason which the right to privacy is a non-defined right has its basis in the
social context of India21. The development of the right to privacy in India could be traced from
the case of M.P Sharma v Satish Chandra22 in which the Supreme Court held that the Indian
constitution does not conceive the right to privacy while determining the outlines of search and
surveillance by the police. This narrow interpretation of the constitution reflects the view point
of the judiciary of that particular time period.

In the case of Kharak Singh v State of Punjab23 the Supreme Court observed that: the right of
privacy is not guaranteed under the Indian constitution and therefore the attempt to ascertain
the movements of an individual which is merely a manner in which privacy is invaded is not
an infringement of fundamental right guaranteed by part III24. This again reflects a restrictive
interpretation of the constitution.

But in the case of Govind v State of M.P25 the Supreme Court took a viewpoint which
represents a paradigms shift in the perspective from their earlier rulings. In this case the
Supreme Court observed that there can be no doubt that the makers of our constitution wanted
to ensure conditions favourable to the pursuit of happiness. The Govan case turned out to be
a landmark case with the Supreme Court repeating the right to privacy in subsequent cases.

In the Rajagopal V State of T.N26 supreme court speaking through that: the right to privacy is
implicit in the right to life guaranteed to the citizens of this country by Article 21. It is the right
to be let alone. A citizen has a right to safeguard the privacy of his life, family, marriage,
procreation, motherhood, child-bearing and education among other matters. None can publish
anything concerning the above matters without the consent, whether truthful or other wise and

20
http://cis-india.org/internet-governance/blog/privacy/privacy-uiddevaprasad
21
http://www.allindiareporter.in/articles/index.php?article=968#sdfootnote27sym
22
AIR 1954 SC 300
23
AIR 1963 SC 1295
24
AIR 1963 SC 1295, 1303
25
AIR 1975 SC 1378
26
1994 SCC (6) 632
whether critical or not. If he does so, he would be violating the right to privacy of the person
concerned and would be liable in an action for damages27.

The cases mentioned above clearly establishes that the right to privacy is very much a part of
the fundamental rights under the Indian constitution. Furthermore, one must not forget that the
right to be left alone and to be free in ones private space is an important right, which the
Supreme Court has accepted in the case of Naz Foundation v Government of NCT and others28.

Right to privacy cannot be claimed to be negative right restraining the power of the state, but
it should be viewed to be a positive duty casted on the state to crated institution that would help
in protecting the private space and life of the individuals. Hence right to privacy can be
interpreted from the article 21 of the constitution of India and it is said to be that these precedent
help us to understand that the UID/Aadhaar is violative of right to privacy.

CONTEXTUALIZING UID WITH RIGHT TO PRIVACY IN INDIAN

CONSTITUTION:

Regarding the right to privacy in India, the decisional jurisprudence has clearly acknowledged
the fact that it forms part of Article 21. In this context privacy can be understood as the right
to be left alone as envisaged by the justice Louis Brandeis. This is more or less related to the
Thoureau concept of government where he says that A good government is a one which
governs a least or donot govern at all so this UID should be there but it must govern the
least and should not infringe the privacy and dignity of the individual. Being a right that is
acknowledged to be part of Article 21, violation of this right by the proposed UID scheme
would seem to be unconstitutional.

When considering this, one aspect that needs to be kept in mind is that the cases that have come
before the Supreme Court have thus far been related to the privacy in any cases regarding
personal data and territorial privacy. Also legislations such as the anti-Terrorism Act of 2002,
information Technology Act of 2000 and the telegraph Act of 1885 have limited restrictions
on privacy. If this kind of Acts have limitations over the privacy then why dont Aadhaar have
a limited privacy over the individuals?.29

27
1994 SCC (6) 632,650
28
MANU/DE/0869/2009
29
http://www.livescience.com/37389-right-to-privacy.html
Looking at the different dimensions of privacy and the contextual need for protection of privacy
in India, clearly there is need for specific affirmative rights to be established in the constitution
regarding privacy, rather than deriving the right to privacy would help to bring in its domain
the aspects of territorial privacy and personal data privacy. If privacy was established right, it
would lead to a clearer definition of what is the right to privacy in the Indian context. Such
clarity is important as projects such as the UID are increasing the need for individuals to have
the right to privacy. Also there is a need for a comprehensive privacy legislative which would
ensure the protection of personal and sensitive data and which may also establish a regulatory
body.

CONCLUSION:

Aadhaar is a potentially useful instrument for delivering benefits and reducing fraud. But even
its staunchest defenders should worry about the crude instrumentalism that has surrounded the
passage of the Aadhaar bill30. This instrumentalism has run roughshod over two values:

Constitutional propriety
Privacy

Finally, we are in an age where we live in what the Columbia legal theorist, Bernard Harcourt
has in his book exposed that: Desire and Disobedience in the digital age, called the
expository society. We not only crave exposure but the better satisfaction of our desires
requires us to give up privacy. But even the carving for the satisfaction of our desires should
not make us immune from worrying about how power is exercised over us. In its crude
instrumentalism about constitutional propriety and privacy the Aadhaar bill is a demonstration
of just how easily state power can become arbitrary. Even though the bill has been passed, it is
important to keep up the pressure so that we can frame better regulations and seek judicial
protection.

CRITICAL ANALYSIS:

The above mentioned points clearly shows that the UID, if brought into practise would discount
the right to privacy and dignity guaranteed under Indian constitution 1950 and would cause
serious implications upon the freedom and choices of the Indian citizen.

30
http://indianexpress.com/article/opinion/columns/privacy-after-aadhaar-money-bill-rajya-sabha-upa/
The UID could also lead to a situation of increased state surveillance, causing an invasion of
the right to privacy and in turn affecting the dignity of individuals. The argument that the UID
is voluntary and hence there is no infringement of privacy has been proved wrong in the above
discussion. Also it has been proven that depicting UID as a tool for development is nothing
more than a myth.

The central government has forced the Aadhaar bill through parliament in a week. Aadhaar has
had an invasion and controversial presence well before the governments attempt to legitimise
it has been challenged before the Supreme Court and in defending it, our attorney general which
is funded by our taxes has argued that we have no right to privacy.

There are extensive threats to privacy contained within this legislation, which seeks to
institutionalise an extensive pervasive database that links multiple other databases containing
our personal information. It is unconscionable for the government to pass the aadhaar bill with
no public consultations about the sort of privacy safeguards that are necessary for such a
database.