In 2009, I became extremely concerned with the concept of Unique Identity for various reasons. Connected with many like minded highly educated people who were all concerned.
On 18th May 2010, I started this Blog to capture anything and everything I came across on the topic. This blog with its million hits is a testament to my concerns about loss of privacy and fear of the ID being misused and possible Criminal activities it could lead to.
In 2017 the Supreme Court of India gave its verdict after one of the longest hearings on any issue. I did my bit and appealed to the Supreme Court Judges too through an On Line Petition.
In 2019 the Aadhaar Legislation has been revised and passed by the two houses of the Parliament of India making it Legal. I am no Legal Eagle so my Opinion carries no weight except with people opposed to the very concept.
In 2019, this Blog now just captures on a Daily Basis list of Articles Published on anything to do with Aadhaar as obtained from Daily Google Searches and nothing more. Cannot burn the midnight candle any longer.
"In Matters of Conscience, the Law of Majority has no place"- Mahatma Gandhi
Ram Krishnaswamy
Sydney, Australia.

Aadhaar

The UIDAI has taken two successive governments in India and the entire world for a ride. It identifies nothing. It is not unique. The entire UID data has never been verified and audited. The UID cannot be used for governance, financial databases or anything. It’s use is the biggest threat to national security since independence. – Anupam Saraph 2018

When I opposed Aadhaar in 2010 , I was called a BJP stooge. In 2016 I am still opposing Aadhaar for the same reasons and I am told I am a Congress die hard. No one wants to see why I oppose Aadhaar as it is too difficult. Plus Aadhaar is FREE so why not get one ? Ram Krishnaswamy

First they ignore you, then they laugh at you, then they fight you, then you win.-Mahatma Gandhi

In matters of conscience, the law of the majority has no place.Mahatma Gandhi

“The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.” Article 21 of the Indian constitution refers to the right to life and liberty -Attorney General Mukul Rohatgi

“There is merit in the complaints. You are unwittingly allowing snooping, harassment and commercial exploitation. The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a court for the purpose of criminal investigation.”-A three judge bench headed by Justice J Chelameswar said in an interim order.

Legal scholar Usha Ramanathan describes UID as an inverse of sunshine laws like the Right to Information. While the RTI makes the state transparent to the citizen, the UID does the inverse: it makes the citizen transparent to the state, she says.

Good idea gone bad
I have written earlier that UID/Aadhaar was a poorly designed, unreliable and expensive solution to the really good idea of providing national identification for over a billion Indians. My petition contends that UID in its current form violates the right to privacy of a citizen, guaranteed under Article 21 of the Constitution. This is because sensitive biometric and demographic information of citizens are with enrolment agencies, registrars and sub-registrars who have no legal liability for any misuse of this data. This petition has opened up the larger discussion on privacy rights for Indians. The current Article 21 interpretation by the Supreme Court was done decades ago, before the advent of internet and today’s technology and all the new privacy challenges that have arisen as a consequence.

Rajeev Chandrasekhar, MP Rajya Sabha

“What is Aadhaar? There is enormous confusion. That Aadhaar will identify people who are entitled for subsidy. No. Aadhaar doesn’t determine who is eligible and who isn’t,” Jairam Ramesh

But Aadhaar has been mythologised during the previous government by its creators into some technology super force that will transform governance in a miraculous manner. I even read an article recently that compared Aadhaar to some revolution and quoted a 1930s historian, Will Durant.Rajeev Chandrasekhar, Rajya Sabha MP

“I know you will say that it is not mandatory. But, it is compulsorily mandatorily voluntary,” Jairam Ramesh, Rajya Saba April 2017.

August 24, 2017: The nine-judge Constitution Bench rules that right to privacy is “intrinsic to life and liberty”and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution

"Never doubt that a small group of thoughtful, committed citizens can change the World; indeed it's the only thing that ever has"

“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” -Edward Snowden

In the Supreme Court, Meenakshi Arora, one of the senior counsel in the case, compared it to living under a general, perpetual, nation-wide criminal warrant.

Had never thought of it that way, but living in the Aadhaar universe is like living in a prison. All of us are treated like criminals with barely any rights or recourse and gatekeepers have absolute power on you and your life.

Announcing the launch of the # BreakAadhaarChainscampaign, culminating with events in multiple cities on 12th Jan. This is the last opportunity to make your voice heard before the Supreme Court hearings start on 17th Jan 2018. In collaboration with @no2uidand@rozi_roti.

UIDAI's security seems to be founded on four time tested pillars of security idiocy

1) Denial

2) Issue fiats and point finger

3) Shoot messenger

4) Bury head in sand.

God Save India

Tuesday, July 28, 2015

8386 - Sorry, Mr. Attorney-General, We Do Actually Have a Constitutional Right to Privacy - The Wire


The right to privacy flows from a structural reading of the Constitution’s Fundamental Rights chapter, and has been an integral part of our jurisprudence over the last 30 years

Headgear and Underwear. Photograph by Meena Kadri, CC 2.0

On Thursday, while defending the government’s controversial Unique Identification (UID) program, the Attorney-General of India informed a bench of the Supreme Court that Indian citizens have no constitutional right to privacy.

The Attorney-General’s argument was a response to the claim of the UID’s opponents, which is that it provides insufficient safeguards to protect individual privacy. Its ramifications, however, are much broader. Privacy concerns are central to a new DNA profiling bill that will soon be tabled before Parliament. 

Additionally, in an age of mass surveillance programs such as the Central Monitoring System and the Netra, which exist in a shadowy, extra-legal realm sans parliamentary debate or statutory sanction, the questions of whether and to what extent Indians have a constitutional right to privacy are critical and urgent.

If the Attorney-General is right, then citizens have no independent claim against intrusive surveillance, data mining, or DNA profiling but must depend upon Parliament to pass a long-stalled Privacy Bill into law. 

If the Attorney-General is wrong, however, then from the interception of my emails or the storage of my DNA, the government is constrained by the Constitution at every step, whether it is an executive action, or a parliamentary law.

Written and unwritten constitutions
At first blush, the Attorney-General’s argument might sound intuitively plausible. A quick glance at the Fundamental Rights chapter of the Constitution reveals no mention of the word “privacy”, or anything that looks like a “right to privacy”.

Constitutions, however, are more than just literal readings of texts whose meanings must be deemed to have been fixed for all time at the moment of their creation. The limited foresight of the framers, who were men and women of their own time, and indeed, the limits of language itself, require constitutions to be interpreted so that they remain meaningful across varying historical, political and social contexts. 

For this reason, the American constitutional scholar, Akhil Amar, has famously posited that there are two constitutions that exist beside each other: the “written constitution”, which is the physical document that we see, touch or read – and the “unwritten constitution”, which is constitutional law not contained in the text, but which arises out of the structure and relationships between different parts of the constitution, and the interpretation that judges have given to the constitution over the years, as they have struggled to apply it to their own time and place.

If we think a little deeply about our own Constitution, we will see that without a strong right to privacy, many of the rights guaranteed by the written Constitution will be entirely meaningless. The rights to freedom of expression, freedom of association, freedom of movement, personal liberty, and the freedom of conscience, all need the breathing space of privacy to survive and flourish. 

Overarching surveillance not only breeds conformity, but chills speech and association, as people increasingly begin to self-censor and dissociate themselves from politically or socially unpopular relationships. Privacy is that part of the unwritten constitution that structures and makes meaningful the great guarantees of our written Constitution, and is therefore as much a right as the latter.

Thirty years of consistent jurisprudence
The Indian Supreme Court case that established a constitutional right to privacy proceeded along this line of reasoning. In Gobind vs Madhya Pradesh, the petitioner challenged certain police regulations under cover of which the local police were constantly surveilling his house, paying him domiciliary visits, and forcing him to report every time he exited or entered his village. 

While reading down the regulations, the Supreme Court observed that “rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists.” 

In other words, the court located privacy as implicit in the concept of “ordered liberty”, holding that it was a necessary pre-requisite for effective enjoyment of all that was guaranteed to the individual by the Fundamental Rights chapter of the Constitution.

In the 30 years since Gobind was decided, the Supreme Court has developed a rich and complex jurisprudence around the right to privacy, and pressed it into service in some of the most important civil rights cases of the last decades. The right to privacy has been invoked to limit state surveillance, curtail intrusion into personal details such as bank data, and hold unconstitutional invasive interrogation techniques such as narco-analysis. The court has made it clear that if it wishes to infringe the right to privacy, the state must demonstrate a compelling interest, and must also show that its policy is “narrowly tailored” – i.e., that it restricts our rights only to the extent necessary to serve its goal.

Two ideas of fundamental rights
What then was the basis of the Attorney-General’s claim, apart from a crudely literal reading of the Constitution? He relied upon two cases: M.P. Sharma vs Satish Chandra, decided by the Supreme Court in 1954, and Kharak Singh vs State of UP, decided in 1962. 

In M.P. Sharma, which was a case about the right against self-incrimination (contained in Article 20(3) of the Constitution), the Supreme Court observed that because the Indian Constitution had no provision analogous to the American Fourth Amendment, which prohibited unreasonable searches or seizures, a right to privacy could not be read into Article 20(3). 

In Kharak Singh, where the facts were remarkably similar to Gobind, the court noted that because there was no guaranteed right to privacy, surveillance of a person’s movements could not be said to be an unconstitutional violation of his freedom of movement under Article 19(1)(d) of the Constitution. Since both M.P. Sharma and Kharak Singh had a “higher bench strength” (i.e., more judges) than Gobind, and therefore bound the latter, the Attorney-General argued that at best, the position of law is contradictory, and must be resolved afresh by a new bench of the Supreme Court that has enough judges to either affirm or overturn the judgments in M.P. Sharma and Kharak Singh.

However, as senior lawyers Shyam Divan and Gopal Subramaniam pointed out in response, M.P. Sharma and Kharak Singh were decided in an age where the Supreme Court held a very different view of fundamental rights than it does now. In the 1950s and 1960s, the Supreme Court believed that every right was separate and isolated from each other, with its own unique content. There could be no overlap, for instance, between the Article 19(1)(d) right to freedom of movement, and the Article 21 right to personal liberty. When a legal provision was challenged, the Supreme Court would first examine which right was implicated most closely, and then decide whether it was violated or not.

But in 1970, in the Bank Nationalisation Case, an 11-judge bench of the Supreme Court abandoned this hermetic view of fundamental rights, holding fundamental rights were not mutually exclusive. This position was affirmed in the famous Maneka Gandhi Case, where the court observed that Article 14 (equality), 19 (fundamental freedoms) and 21 (life and personal liberty) were all interrelated, and that the understanding of one could hardly be complete without reference to the others. This was the position when Gobind came up before the Supreme Court in 1986.

We can now see why the Attorney-General’s reliance upon M.P. Sharma and Kharak Singh is misplaced. The right to privacy, by its very nature, is not found in one specific provision (although the Supreme Court has “read it into” Article 21’s right to personal liberty), but arises out of the structure of the Fundamental Rights chapter. The structural reading of fundamental rights was only inaugurated by the court in 1970, long after the decisions in M.P. Sharma and Kharak Singh. In fact, in Kharak Singh, after observing that the freedom of movement was not hampered by surveillance, the court then noted that it was “not necessary” for it to consider the petitioner’s Article 21 claim. This iron-clad separation of the freedom of movement (Article 19(1)(d)) and personal liberty (Article 21) was abandoned by the court in 1970, and with it, the very basis of Kharak Singh.

A right to Privacy
There is, in conclusion, no warrant for the Attorney-General’s argument that Indian citizens have no right to privacy. The right to privacy flows from a structural reading of the Fundamental Rights chapter, and has been established as an integral part of constitutional jurisprudence over the last 30 years. It is essential to any meaningful enjoyment of the expressly guaranteed rights in the Constitution. And the cases relied upon by the Attorney-General for his argument cleave to a philosophy of rights that the Supreme Court abandoned 45 years ago.


Gautam Bhatia is a Delhi-based lawyer and legal academic.