July 24, 2015 -
During the course of defending the legality of the Aadhaar biometric scheme before India’s Supreme Court this week, the chief lawyer for India’s central government argued that privacy is not a fundamental right bestowed by the country’s constitution. India’s government also asked the court to reconsider all Supreme Court judgments over the past two decades that defined privacy as a constitutional right.
India’s central government made the argument in order to defend extending the use of the Aadhaar biometric system for security and crime-related surveillance. The government is currently piloting the use of the biometric scheme for airport security.
The Aadhaar program, implemented by the government’s Unique Identification Authority of India (UIDAI), aims to provide all of the country’s residents with unique identification through biometrics, and is already being used for the delivery of services including, most recently, the payment of pensions. Currently, the service is used to identify citizens and provide various services for approximately 630 million people. The database is also actively used to monitor school attendance, issue natural gas subsidies to India’s rural poor, and to send wages directly to people’s bank accounts.
Arguing before a three-judge bench led by Justice J Chelameswar, Attorney General Mukul Rohatgi asked the court to separately adjudicate the privacy issue, which he called “a disputed question of law and constitutional provisions”.
A report in Indian Express noted that in defending the validity of the Aadhaar scheme, Rohatgi must have the court determine authoritatively whether privacy is indeed a fundamental right in order to contend with a batch of legal petitions that claim collection and sharing of biometric information is a constitutional breach.
An editorial in The Hindu newspaper contends that the government faces a “formidable legal challenge” from the petitions. The petitions made before the court by civil liberties activists questions the lack of a statutory basis for the collection of biometric details. In accordance with Indian law, the central government has to defend its legal position to the court’s satisfaction. The government will make strong arguments that privacy is not a constitutionally-protected right, in order to extend the use of the Aadhaar program for other large social service rollouts, such as the implementation of a universal healthcare scheme.
Ironically, the Modi government, which came to power last year, was highly critical of the previous government’s administration of the biometric ID system during a contentious election campaign, when it characterized Aadhaar as a “failure” and a “waste of money” that needed to be eliminated. However, after the new government came to power, it decided not only to maintain, but expand the system, with a view to expanding social services, along with enhancing attendance monitoring over government employees.