Supreme Court to rule on Aadhaar privacy issue on Tuesday

Live Mint, 07 August 2015

The apex court will decide whether petition challenging the scheme should be referred to a constitutional bench. The plea against Aadhaar is filed on the ground that, among other things, it violates the right to privacy of individual citizens.

New Delhi: The fate of a raft of government schemes, including its much-vaunted direct benefits transfers linked to the Aadhaar unique identity numbers, hangs in the balance.

On Tuesday, the Supreme Court will rule whether petitions challenging the Aadhaar scheme on grounds that it violated the privacy of citizens should be sent to a five-judge constitutional bench or not.

If indeed it refers the case to a constitutional bench, the debate on the scheme will be revived afresh, giving the government much-needed time. Alternatively, if the apex court opts against it, the clock will effectively begin ticking on a verdict that may or may not favour the government.

Aadhaar was conceived by the Planning Commission, through a notification in January 2009, as an initiative that would provide a unique identity number for each resident of India and be used primarily as the basis for efficient delivery of welfare services.

It was meant to be a tool for effective monitoring of various welfare programmes, including scholarships, pensions, delivery of subsidized foodgrains through the public distribution system and cooking gas.

The government has already linked Aadhaar to Pahal-Direct Benefits Transfer for liquefied petroleum gas (LPG) and claims that the direct transfer of cooking gas subsidy the bank accounts of beneficiaries helped save more thanRs.10,000 crore in 2014-15.

Under the Pahal scheme, till date, 138.4 million beneficiaries have received Rs.22,903.78 crore as refunds.

Rajat Moona, director general of the Centre for Development of Advanced Computing, said Aadhaar had made the e-KYC (know your customer) process and e-signatures possible.

“We are working with the Election Commission to link the voter’s card to Aadhaar because it will help in cutting out duplication,” Moona said.

A bench comprising justices J. Chelameswar, S.A. Bobde and C. Nagappan has been hearing petitions challenging the Aadhaar scheme on privacy grounds for over two weeks now. The hearing has been restricted to the question as to whether a three-judge bench can hear the matter. The main contention on the validity of Aadhaar is yet to be heard.

The plea against Aadhaar is filed on the ground that, among other things, it violates the right to privacy of individual citizens. The petitioners have argued that the scheme was merely an executive move, without statutory backing or regulatory oversight.

Attorney general Mukul Rohatgi has argued that the right to privacy of a citizen is not fundamental in nature, citing judgments of larger benches of the apex court. In view of this, the matter must be referred to a larger constitutional bench if the court decides to hear the case on merits, the centre has maintained.

As of 31 March, there were 29 pending cases before the Supreme Court which are to be heard by five-judge benches. If the court decides in favour of a referral to a constitutional bench in the present case, Aadhaar would be added to that list.

“There are certain kinds of cases that the Supreme Court has held under the right of privacy, like privacy in terms of police surveillance or tapes of conversation being leaked to the media,” said an expert dealing with privacy issues who did not want to be identified.

“There is no clarity in this regard as to what aspects of privacy will be affected under the UID in terms of data breach and security. There is greater clarity required. I don’t think that the Supreme Court has gone into the core principles of privacy by breaking down to its basics,” the person said.

The government and the Centre for Civil Society (a respondent in the case) have submitted certain questions that would require consideration by a larger bench of the court.

The centre has pleaded before the court that a larger bench must deliberate on whether the right to privacy can be held to be a fundamental right under the Constitution and if so, the contours of that right must be decided.

Senior advocate K.K. Venugopal, representing the CCS, clarified in the course of his arguments that it was not CCS’s stand that there was no fundamental right to privacy.

On Wednesday, the bench asked the government what remained in Article 21 (which guarantees right to life and personal liberty) if privacy wasn’t a part of it. “As long as the word (liberty) remains there (in Article 21), we have to give it meaning. Just to say that it’s not at all there is something we’ll not accept,” Chelameswar said.

The National Identification Authority of India Bill, 2010, is pending in Rajya Sabha.

According to an apex court ruling in September 2013, Aadhaar cards cannot be made mandatory to avail of benefits from social security schemes like cooking gas subsidy. In 2014, the court, in an interim order, restrained the Unique Identification Authority of India from transferring anyone’s biometric information with an Aadhaar number to any other agency without the individual’s consent in writing.

Experts are wary of linking Aadhar to various government schemes.

“Even if Aadhaar is not there, nothing will be lost. People are still getting benefits without Aadhaar and this can be done in the future as well. The system of collection of data for Aadhaar is outsourced; that data needs to be protected,” said Jehangir Gai, a Mumbai-based consumer activist.

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