Aadhaar: Privacy vs Good Governance Face-off Can Be Resolved

Can the compulsions of a “democratic” welfare state override democratic considerations?

Clash Over Privacy

• CJI pressurised to break the standoff between government and critics over Aadhaar scheme

• Privacy is not contingent upon economic or social status; it is integral to individual dignity
• Deep distrust of a “surveillance state” cannot be dismissed as paranoia
• It’s up to the SC to strike a judicious balance between competing claims

Aadhaar – the government’s much vaunted unique identity database project – seems to have fallen into a quagmire. So pressing is the urgency that on Thursday, as the Chief Justice of India was almost pressurised into assuring that by Friday evening, he shall definitely announce the setting up of a larger bench to decide upon the complicated and vexing questions which have led to a standoff between the government and its critics.

This could have been the result of the Supreme Court order on Wednesday which declined to entertain the Unique Identification Authority of India (UIDAI), along with other welfare schemes, which the government insists are critical to the sustenance, well-being and upliftment of the people, especially those belonging to the socially and economically deprived and marginalised classes.

On 11 August, while hearing a constitutional challenge to the Aadhaar scheme, the court passed an interim order, in which it held that the Aaadhaar Card, which contains all biometric data, cannot be made mandatory for availing of any government scheme other than distribution of LPG cylinders, kerosene and foodgrain through the public distribution system.

This ruling was based upon an agreement with the concerns of privacy advocates and civil liberties activists that in the absence of proper safeguards and oversight, it would be too dangerous to permit the continuation of schemes which allow the government and even private agencies to collect and store citizens’ intimate data. Apart from the risk of being misused and resulting in irreparable harm, Aadhaar’s opponents had raised a fundamental question – that the right to privacy, which they contend is a fundamental right under the right to life, would be severely jeopardised.

Privacy versus Social Security?

To any ordinary individual, it would appear that the government doesn’t give a toss about privacy, which, anyway, is still a nebulous concept in India. Sample the Attorney General Mukul Rohatgi’s statements before the Supreme Court – that privacy is not a fundamental right, or that the poor, in their desperation, would be willing to waive their right in order to be eligible for government dole. These utterances, which betray the government’s almost adamantine insistence, surely doesn’t help its case, what with the court repeatedly castigating and warning different authorities from imposing the scheme on citizens.

It would be a tad difficult to deny that the government’s stance implies an elitist bias, because, privacy is not contingent upon economic or social status; it is integral to individual dignity.

On the other hand, there is the critique from scholars and activists such as Dr Usha Ramanathan, who have been unflinching in their stance that technological determinism is not a silver bullet, and comes with its own share of perils. In an opinion piece in The Indian Express she explains the apex court’s 11 August ruling, and cogently argues why the scheme would be an intrusion in the right to privacy. Nandan Nilekani, the brain behind Aadhaar, counters this argument by emphasising how indispensable it is to achieving the objectives of a welfare state.

Is There a Middle Ground?

It can be said without a shred of doubt that both warring factions have valid grounds, although, the deep distrust of a “surveillance state”, in a post-Snowden world, cannot be airily dismissed as paranoia.

The government needs to implement its social justice and related schemes since thousands of citizens’ survival depends upon it. The data of more than 90 crore Indians have been collected and stored in a database, and that has involved substantial public expenditure. Moreover, a number of government initiatives, not all of them targeted only at the poor, are staring at an uncertain future because of the court’s ruling.

Some would like to dismiss it as a clash of semantics, or a component of legalese, but without a doubt, the right to privacy in India is insufficiently defined. There are, as the government argues, conflicting Supreme Court rulings, while Constitutional experts argue that this right has been an inseparable part of our jurisprudence. In 2012, the Planning Commission weighed in, factoring in all arguments, and recommended the enactment of a Privacy Act.

So, who will break the Gordian knot? As of now, both sides are unrelenting, and determined not to budge an inch. Will the government forcefully surge ahead, even at the cost of circumventing the Supreme Court and by bringing in an Ordinance or passing executive orders? Would privacy activists be willing to agree to a moderate trade-off?

While one could speculate upon the outcome, it would be useful to note the suggestion Rajya Sabha MP, Rajeev Chandrasekhar, has proffered – enact a legislation on privacy, ensure that all concerns are addressed, and then proceed with the “good governance” agenda.

The wheels of justice grind excruciatingly slowly in India, and Constitutional bench decisions can take an inordinately long time to come in. Thus, it would be beneficial for the government to mull on Chandrasekhar’s solution and work upon it.