FAQ: What the Right to Privacy Judgment Means for Aadhaar and Mass Surveillance

Does the right to privacy becoming a fundamental right mean the Aadhaar programme is unconstitutional or will be shut down? The Wire explains.

Does the right to privacy becoming a fundamental right mean the Aadhaar programme is unconstitutional or will be shut down? The Wire explains.

What does the ruling mean for the Aadhaar case?

New Delhi: The Supreme Court on Thursday (August 24) ruled that all Indians enjoy a fundamental right to privacy, a right that is protected under Article 21 of the constitution.

But what does this mean for the government’s Aadhaar programme? Is it going to be shut down? How does the government view the fundamental right to privacy? What does it mean for mass surveillance? The Wire breaks it down.

Does the right to privacy becoming a fundamental right mean the Aadhaar programme is unconstitutional or will be shut down?

In one word, no. While the right to privacy case stemmed from a batch of petitions challenging the constitutional validity of the identification scheme, Aadhaar by itself is out of the scope of today’s judgment.

A quick recounting of history is important in understanding this.

In October 2015, a Supreme Court constitution bench led by the then Chief Justice H.L. Dattu declared that the “Aadhaar card was purely voluntary” and could not be made mandatory. The bench further stated that the voluntary nature of Aadhaar would continue to be in place until a larger Supreme Court bench of judges decided whether the biometric authentication scheme violated the privacy of Indians.

It took the Supreme Court almost two years to set up that larger bench of five justices to examine whether Aadhaar violated the right to privacy. What happened during the initial July 2017 hearings is that both former attorney general Mukul Rohatgi and current attorney general K.K. Venugopal argued that the right to privacy was not a fundamental right. Venugopal, in particular, cited the 1963 Kharak Singh case to emphasise that there was no right to privacy under Article 21 and Article 19 (1) (d) of the constitution.

The attorney general’s argument is what kicked off the nine-judge bench which examined whether privacy could be seen as a fundamental right. The five-judge bench hearing on Aadhaar was stopped and a new one started.

On Thursday, the nine-judge bench delivered its judgment which dismantled the attorney general’s arguments and in particular overruled previous judgments in the Kharak Singh and MP Sharma cases.

So what does this mean for the Aadhaar case?

The biggest immediate impact of the privacy judgment on Aadhaar is that it will end the legal gridlock over the fundamental nature of a ‘right to privacy’ and hopefully move along the court hearings on the validity of the government’s identification scheme.

The field is clear for the Aadhaar hearings, which were cut short, to resume under a smaller three-judge or five-judge bench.

According to legal experts, this judgment might indicate some momentum for the anti-Aadhaar camp, but the true test of a fundamental right to privacy will be when it is applied in specific legal cases. There are a number of upcoming cases out of which the Aadhaar hearings are one.

What is the government’s take on this?

Hours after the judgment, IT minister Ravi Shankar Prasad tweeted out that the government had favoured a fundamental right to privacy.

Prasad’s initial remarks are false. As Rohatgi and Venugopal’s arguments show, the government believed that privacy as a concept was “too amorphous” to be declared a fundamental right and soundly opposed it in court. Another argument put forward was that privacy was an elitist concept that may not apply to impoverished Indians.

While finance minister Arun Jaitley in Rajya Sabha did declare that he believed it to be a fundamental right, this was not the stance the government adopted before the Supreme Court.

A statement put out by Prasad later in the day correctly notes that the Supreme Court has not declared privacy to be an absolute right and instead, like most other fundamental rights, will be balanced by certain reasonable restrictions.

Will this put greater pressure on reforming or amending the Aadhaar Act?

It’s difficult to guess as to how Thursday’s judgment will impact the Aadhaar Act. One of the concerns that was shared among both the petitioners against Aadhaar and the government was that the Supreme Court shouldn’t poke too deep into detailing the contours of a right to privacy.

Several judges, in their opinions, have taken broad stabs at how privacy should be defined. Justice Chelameswar for instance defines privacy to include three aspects: “repose, sanctuary and intimate decision”. Repose is essentially freedom from unwanted stimuli, sanctuary is protection against intrusive observation and intimate decision is respecting personal life choices.

It is possible that this judgment will be used in future legal cases to try to amend the more contentious provisions of the Aadhaar Act or influence future data protection legislation that in turn will make the Aadhaar system more secure. Only time will tell.

What does the judgment say on mass surveillance programmes or the business models of the Silicon Valley tech companies?

It is true that India’s information protection laws are currently inadequate to tackle the issue of data commodification and exploitation. The judgment can be used to reinvigorate conversation on how India’s data protection models should be reconsidered and reconfigured towards greater user protection. But it is unlikely that it will do more than that immediately.

What of mass surveillance? It is important to note that the Supreme Court doesn’t dive into this issue. However, some of the justices talk about the importance of national security in restricting or “balancing” the right to privacy.

For instance, in his judgment, Justice Sanjay Kishan Kaul admits that big data-fuelled “profiling can also be used to further the public interest and for the benefit of national security”.

“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,” Kaul writes in his judgment.

Referencing the BlackBerry data case, Kaul does also note that while lawful interception of data “may be desirable and permissible… it cannot be unregulated”

How will the right to privacy play out across the broader rights spectrum?

As Justice Chelameswar and Nariman point out, how a fundamental right to privacy will affect other domains such as Section 377 will depend on a case-by-case basis. The Supreme Court’s judgment effectively states that laws that seek to restrict privacy “must be just, fair and reasonable but also serve some compelling state interest”.

Once the ‘right to privacy’ tyre hits the road and is used in more legal cases down the road, its eventual effect and potential restrictions will become clear. This broadly, however, applies to crucial upcoming cases on everything from marital rape to criminal defamation.