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Indian government facing privacy challenges regarding Aadhaar


The Hindu ran a recent op-ed piece in which writer Sanjay Hegdet called on the Chief Justice of India to establish the larger Bench to assess privacy challenges to Aadhaar, a 12-digit unique identity number based on collected biometric information.

Last week, the Union government made it mandatory to link the Aadhaar number with the permanent account number (PAN) of a person, which would be effective starting July 1.

India’s Finance Minister Arun Jaitley made Aadhaar mandatory for the filing of income tax returns and for linking PAN with Aadhaar to examine tax evasion using multiple PAN cards.

Hegdet compares the Supreme Court’s decision to leave the architecture of enforced surveillance in place to applying “a band-aid on a gaping wound, which required stitches if not surgery.”

“There is… no broad declaration against an overpowering state’s propensity to stretch out to every sphere to compel individual surrender of little remnants of liberty,” Hegdet writes.

Unique Identification Authority of India (UIDAI) initially started Aadhaar for the sole purpose of confirming the unique identities of Indian citizens, with the authority resisting any attempt by government departments to overstretch this mandate.

However, there has been an increasing number of service providers over the years seeking linkages to the data. As a result, the government has increased the number of government agencies and other organizations that could enforce Aadhaar-based identity as a lone requirement for verifying the user.

Additionally, Hegdet argues that the Indian government has deliberately misconstrued an earlier Supreme Court ruling to convince telecom companies into making Aadhaar a requirement for all mobile phone users.

The government has also used education and health services to expand the Aadhaar net and bring more people under the system.

In August 2015, the Supreme Court referred the privacy challenges to Aadhaar to a larger Bench of potentially nine judges. Nearly two years later, the court has yet to make a decision regarding this issue.

Hegdet emphasizes that the court needs to rule on whether the right to privacy is an established part of the fundamental right in India.

Attorney General Mukul Rohatgi asserted at a hearing before three judges that based on judgements in two previous cases, the legal position regarding the existence of the fundamental right to privacy is “doubtful.”

He then said that the “right to privacy” deemed to be accepted by subsequent smaller Benches “resulted in a jurisprudentially impermissible divergence of judicial opinions”.

The court stated the “opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution.”

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