Aadhaar not going anywhere, despite fundamental Right to Privacy

A nine-judge constitution bench ruled privacy as a fundamental right of citizens of India.

It's been a good couple of days for the judiciary of India, in particular, the Supreme Court. It has been hailed by most, following the two decisions of banning the practice of instant triple talaq and then declaring privacy to be a fundamental right.

The praise for it has come from all sides including the general public, activists, news media, and in the first case even the government. While the ban was quickly praised by the central government, which even tried to take much of the credit for it, the second has not gone down well with it, no matter what the ministers and leaders of the leading dispensation might say in public.

This comes from the fact that while the government was in favour of banning the instant triple talaq practiced in the Muslim community, it was the side that lost the case when the nine-judge constitution bench decided to go against previous apex court judgments and deem Right to Privacy a fundamental right guaranteed by the Indian Constitution.

While on the face of it should not feel a major concern to the Centre, the reality is the verdict is set to have a big impact on other issues, the most high profile and of greatest importance out of them for the Union government being the unique identification project, Aadhaar.

Unsurprisingly most of the celebrations by those hailing the new status of privacy in the country have been based on the linking of this judgment to the ongoing case on the Aadhaar's legitimacy, but many have misjudged the current verdict as a defeat of the unique identification project.

This might end up being the case, but as of now the current judgment is only a blow to the government's stand on the issue of Aadhaar, as privacy is a key component of the court case related to it, yet it is by no means the end of it.

As the bench that delivered the latest verdict had made it clear that it would only delve into the matter of privacy as a fundamental right and not on the issue of Aadhaar, which is being heard by another five-judge Constitution bench. And it is that set of five judges that would decide the course of Aadhaar's future, by ruling on whether it violates the new standing that privacy now enjoys in India.

While it would be understandable to hope for the judgment's possible positive impact on other issues, especially ones related to sharing consumer data, homosexuality being a criminal offence, among others are worth while, it wouldn't be a bad idea to hold off on the jubilant reactions in the fight against Aadhaar as of yet.

Especially since the concept of reasonable restrictions, which is often a loophole that provides for government intervention against the overarching major rights that individuals enjoy or in other similar situations, either already exist or are brought in law, or are provided by courts themselves while looking into specific matters, might still have a role to play.

And Union Law Minister, Ravi Shankar Prasad, pointed this out in his media briefing after the verdict came out along with making it clear that Aadhaar Right to Privacy was not absolute. He said, "Even a fundamental Right to Privacy has limitations, that need to be identified on case-to-case basis."

This won't be the first or the last time that the government will find a way out of a situation like this. As was seen in the case of Article 19, Freedom of Speech and Expression, which was amended as part of the first constitutional amendment by the Jawaharlal Nehru led government in 1951 to add further reasonable restrictions to the enjoyment of this particular fundamental right, following actions of print publications which the government deemed a misuse of it.

For now, the reality is that the ruling dispensation will still be confident of going forward on the implementation of the Aadhaar project since the State is unlikely to be barred from asking for personal details of individuals including biometrics, but will clearly be held accountable if it shares them with others for anything but the stated and intended purpose.

The government will try hard to delink the privacy matter with Aadhaar implementation and to sell the fact that it should be seen as a safe mechanism in which government has taken all the precautions to safeguard data of citizens. This has already started as could be seen when Prasad said the BJP government made Aadhaar law to protect the data. "Aadhaar during UPA regime had no protection of law. We made Aadhaar law and provided legal framework for protection its data.'' He further added, "Government has formed a high-powered committee for data protection, which the Supreme Court has noted."

Though following the unanimous verdict the unique identification program's fate hanging in the balance and the government is by no means going to let it go, given the work that has already been put into it and the big push that has been given to its implementation. With over a billion people already holders of Aadhaar card, and laws brought in along with schemes, which are dependent on the unique id, a failure on this front will not be a good sign with elections looming in less than a couple of years.

So while the celebrations are natural and deserved reactions to a victory in the battle against Aadhaar and other areas where the State is thought to be interfering in the personal matters of citizens, the war on the topic of Aadhaar and other crucial areas is clearly far from over. And the government is in no mood to surrender.

OneIndia News