SC to take a call on Adhaar
- The batch of matters challenging the Aadhar Scheme has been pending for years with no fruitful result.
- In regard to the issue of right to privacy, it may be illusory but it is mandatory on the court to determine whether the illusion is necessary in order to lead a life of freedom and dignity.
Issue with Right to Privacy:
- The issue of whether the right to privacy is a fundamental right or not under the Constitution is being heard by a nine-judge bench.
- In its judgment on August 11, 2015, the three-judge bench of the Supreme Court had clearly told the Centre as well as the Unique Identification Authority of India (UIDAI) that the Aadhar card could not be a mandatory requirement for obtaining any benefit due to a citizen.
- Assuming the Supreme Court decides the right to privacy is a fundamental right, it will be crucial for the Court to also decide whether it should, and can be, applied “horizontally”.
- Horizontal application would mean that even the actions of private actors are tested on its cornerstone.
- Over the years, courts have expanded the number of institutions within the definition of “State,” thereby allowing fundamental rights to be asserted horizontally.
- The impact of the decision on private players, such as companies like Google and social media platforms, may also be significant.
- If privacy is a fundamental right, it can be claimed and asserted against the State by citizens.
- The nine-judge Bench observed on July 20, 2017, that a significant amount of personal data has already been given by individuals to private players, and may be on the Internet or the “dark web”.
- While there is some amount of regulation under the Information Technology Act and restrictions on the use of “sensitive personal information,” India has yet to adopt a comprehensive Data Protection Code as has been done by the UK and European Union
- The Supreme Court should urge the State to enact such legislation or fill the gap by detailing guidelines for data protection until such legislation is enacted.
- The Supreme Court could outlaw the entire Aadhar scheme and declare the Aadhar Act unconstitutional.
- The consequence of that would be far-reaching and politically radical – especially as Rs 9029.6 crores has already been spent and Aadhar is being widely used as proof of identity
- What the decision cannot do is retrospectively prevent the proliferation of Aadhar or monitor the manner in which it was promoted.