In 1858, an English civil servant named William Herschel pioneered the biometric method of identification by forcing a businessman in Jangipur, now in West Bengal, to impress his handprint on a contract he had entered into with the government. Herschel soon began collecting fingerprints from pensioners as a means of avoiding impersonation by others and considered this his “substantial contribution towards public morality”.
What began as one Englishman’s experiment with the “natives” has culminated, a century and a half later, in the creation of the Central Identities Data Repository, a centralised database that contains photographs, fingerprints and iris scans of over a billion Indians. The constitutionality of collecting a citizen’s biometric data for the purpose of issuing her a 12-digit Aadhaar identification number and its subsequent storage in the repository will, one hopes, soon be tested in the most momentous constitutional case of our time.
Substantial question of law
Under Article 145, the Chief Justice of India may assign a Constitution bench to decide substantial questions of law as to the interpretation of the Constitution, referred to it by a bench comprising two judges or more of the Supreme Court. This was what happened in August 2015 when a three-judge bench headed by Justice J Chelameswar was hearing various petitions challenging the constitutionality of Aadhaar. It referred the following questions to the constitution bench for a decision.
- Whether there is any “right to privacy” guaranteed under the Constitution.
- If such a right exists, what is the source and what are the contours of such a right as there is no express provision guaranteeing the right to privacy.
How the constitution bench answers will determine the future of the Aadhaar system and the Central Identities Data Repository, and whether India’s march towards becoming a surveillance state can be halted.
Right to private life
In 1954, an eight-judge bench of the Supreme Court, in the case of MP Singh, held that there was no need to import the right of privacy into the Indian Constitution, especially when the framers in their wisdom had decided against providing for such a fundamental right. A decade later, in the case of Kharak Singh, a six-judge bench, by a majority of four to two, again reiterated that an invasion of privacy by the state did not violate fundamental rights.
Justice Koka Subba Rao, part of the minority in Kharak Singh, analysed the scope and ambit of Article 21 of the Constitution, which prevents the state from depriving individuals of their life and personal liberty except according to procedure established by law. What this means is that depriving someone who commits murder of life or liberty by sentencing them to death or imprisonment will be constitutional as it is according to the procedure established by law, that is, Section 302 of the Indian Penal Code.
In Justice Subba Rao’s opinion, the right to personal liberty took in not only a right to be free from restrictions placed on one’s movements but also to be free from encroachments on one’s private life. “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”
His reasoning was adopted by a four-judge bench in the case of Govind, which was decided in 1975.
Delivering the unanimous judgement of the court, Justice KK Mathew stated 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”. Almost two decades later, in the case of Rajagopal, the Supreme Court explicitly recognised the right to privacy as being implicit in the right to life and personal liberty.
It is in the backdrop of these cases that the constitution bench will have to decide the validity of the Aadhaar Act and the Central Identities Data Repository on grounds of invasion of privacy.
Just, fair and reasonable
Given the recent jurisprudence of the court, the bench will likely conclude that every person has the right to privacy under Article 21. In the Canara Bank case, which was decided in 2005, the court examined a provision of the Andhra Pradesh Stamps Act, which allowed the collector to enter any premises and inspect any records under the custody of a public officer if such inspection would result in the discovery of fraud or omission of any duty payable to the government.
In one of its most important pronouncements on privacy rights, the court ruled that as long as the financial records in the custody of a public officer belonged to a citizen, those records would be protected under the citizen’s right to privacy. If the constitution bench chooses to follow this approach, there should be no difficulty in holding that an individual’s biometric data, which is far more sensitive than financial records, will also be protected under privacy rights.
There is, however, no absolute right to privacy and it can be interfered with. That said, the Supreme Court stated in its Canara Bank judgement, following the test laid down in the landmark Maneka Gandhi vs Union of India case, that the law and procedure authorising interference with personal liberty and right of privacy must be just, fair and reasonable, and not arbitrary, fanciful or oppressive.
What this means is simply this: once it is established that compelling a person to part with their biometric data is an invasion of their privacy, the state will have to satisfy the requirement that the law authorising the collection of this data, namely the Aadhaar Act, is just, fair and reasonable.
Free and informed consent
Attorney General Mukul Rohatgi is likely to argue that the state is not compelling citizens to part with their biometric data as enrolling for Aadhaar is voluntary. This argument is not likely to pass muster with the constitution bench as by making Aadhaar enrolment mandatory for filing tax returns and availing various subsidies under several welfare schemes, the state is essentially penalising those citizens who fail to part with their biometric data.
In response, Rohatgi could contend, as he has done in the past, that the poor man will have no second thoughts about shedding his privacy rights to enrol for Aadhaar as it gets him a square meal and earnings.
Again, this argument should be rejected by the bench under what is known as the Doctrine of Unconstitutional Conditions, which was propounded in the Ahmedabad St Xavier’s College case. Under the doctrine, any stipulation imposed upon the grant of a governmental privilege that in effect requires its recipient to relinquish some constitutional right is not constitutional.
This means that the state cannot force citizens to give up their right to privacy in order to avail of an LPG subsidy. It is incumbent upon the state to ensure that the citizens can enjoy privileges afforded to them by the government without asking them to relinquish fundamental rights.
Rohatgi, though, has another ace up his sleeve: that 97% of Indians have “voluntarily consented” to submitting their biometric data. This consent argument, too, can be countered by relying on the unconstitutional conditions doctrine. The Supreme Court has mandated that the state cannot use the grant of privileges to secure a valid consent to acts which would be beyond its constitutional power. Thus, if a villager consents to providing his biometric data to benefit from the employment guarantee scheme Mnrega, her consent cannot be said to be free and voluntary.
It can also be argued that the hundreds of millions of Indians who “consented” to their biometric data being taken before the passage of the Aadhaar Act in March 2016 were not informed as to what they were consenting to. Hence, if you enrolled for Aadhaar before March 2016, it cannot be presumed that you consented to Section 33 of the Act, which states that your data can be shared with the police if there is a court order to that effect without you getting an opportunity to be heard.
Your data can also be disclosed in the interest of national security on the orders of a bureaucrat with no judicial oversight. One would hope that such draconian provisions that impinge on an individual’s liberty and privacy will lead to Aadhaar being struck down as unconstitutional by the Supreme Court and destruction of the biometric data contained in the Central Identities Data Repository.
The last refuge
A more realistic outcome is that the court will put off a decision, like it did in the case of demonetisation, until it is too late to turn back the clock. Then, when it does rule on the constitutionality of Aadhaar, the court will most likely find a compromise by reading down the draconian provisions while ensuring that the repository, which forms the backbone of Aadhaar, remains intact.
The man most responsible for the behemoth that is the Central Identities Data Repository is the technocrat Nandan Nilekani, a modern-day Herschel whose engineers have perhaps unwittingly built the most effective tool for mass surveillance in human history. The highest court in the land is now the last refuge of the citizen whose rights are being sacrificed at the altar of good governance. Whether it provides them sanctuary remains to be seen.
Abhishek Sudhir is the founder of Sudhir Law Review, a legal education website.