Whether privacy should be made a fundamental right is a good debate, but Aadhaar must have legal clarity
Ashish Mehta | July 27, 2015
Do we in India have the concept of privacy? The supreme court is hearing a bunch of petitions that have objected to Aadhaar because it infringes on citizens’ privacy. The government has said ‘right to privacy’ is not a fundamental right. It does not figure in the constitution, of course, even if the apex court has read ‘right to privacy’ as part of the all-important ‘right to life and liberty’ in several judgments. But after the attorney general’s arguments of July 22, a nine-judge bench will review the whole matter.
So, again, is privacy a serious matter in India and are we sensitive to what can be called privacy issues? Arguably not. There are several arguments against conceiving privacy as a fundamental right.
One argument to settle the matter comes from language. Check dictionaries for ‘privacy’ and the translations in Hindi and other Indian languages that come up are closer to ‘personal’ (nijata), ‘secrecy’, ‘confidentiality’ (gopaniyata), and ‘solitude’ (ekanta) – not privacy in the sense of somebody you don’t know looking over your shoulder and reading your text messages. Indian languages do not have a word that carries the meaning as defined by the Cambridge dictionary: “Someone’s right to keep their personal matters and relationships secret.”
That is because in India life is lived in community, with few secrets. That is true not only over the centuries, but also for a majority of population today. It is difficult to imagine what privacy would mean to somebody who lives in a village (73 percent people, according to the socio-economic caste census) and lives on a monthly income of less than '5,000 (74 percent people). This is not to argue that the poor need not care about social norms but they have many more pressing concerns on hand. As for the rest, the urban and economically well-off sections of society, is privacy an issue when many of them are in race to flaunt their most private details on social media for anybody who’d care to check?
If this luxury of privacy is used as a weapon to block Aadhaar, which can plug subsidy leakages and save thousands of crores, then it is a mockery of those 74 percent people.
And yet there is a need to debate privacy as a fundamental right. The constitution was drafted in a different era, and its makers obviously did not see privacy as a fundamental right. The supreme court indeed came to interpret privacy as a fundamental right way back in 1964. It saw privacy as part of the Article 21, the right to life and personal liberty. There have been a number of judgments on the same line.
Moreover, the digital revolution over the last couple of decades has made privacy much more than an interpersonal issue; its breach can lead to serious crime. Not reading someone else’s text message may only be a matter of etiquette if the message is from one’s spouse, but if it is a banking transaction password, it is potentially a criminal matter.
In case of Aadhaar, while the ultra-liberal privacy argument (‘I won’t allow the state to capture my biometrics’) is misplaced, the unique identity authority of India (UIDAI) has to assuage the fears of misuse of data. Any regular website – including, ironically, UIDAI’s – assures the user that his or her data will not be shared with anybody without consent. That safeguard clause (along with the provision of sharing data for national security reasons), is very much called for in case of Aadhaar database.
Unfortunately, the UIDAI was introduced in a manner as hurried as it was surreptitious. It began with an executive order, and the law to back it is still awaited, even after it won the new government’s support last year. The national identification authority bill was drafted right at the beginning, in 2010, and was redrafted last year too, but is yet to see the light of the day. An accompanying right to privacy bill was also in the offing, but its future seems grim.
Thus, what should be on agenda is the pressing need for the legal backup of UIDAI, with fully spelt out provisions to assuage the fears of privacy breach. Instead of moving in that direction, the attorney general’s argument against privacy as a fundamental right is setting the clock back to 1947.
Joseph A Cannataci is the UN’s first and current special rapporteur for the right to privacy appointed by the Human Rights Council (HRC) in July 2015. His appointment came with growing global concerns about threats to privacy in the digital age where governments and big corporations collect
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