The Indian Supreme Court in New Delhi has 25 judges appointed by the president, including the chief justice. Photo: Google Maps

Last Thursday, a day after the Indian Supreme Court passed a landmark judgment deeming “triple talaq” to be unconstitutional, the country’s highest judicial body endeared itself further to the masses by declaring privacy to be a constitutional right.

But while the verdict banning the controversial Muslim divorce practice was seen as a major victory for the ruling Bharatiya Janata Party (BJP), the decision on the right to privacy is being viewed as a major setback, as the government had argued that the constitution did not guarantee individual privacy as an inalienable fundamental right.

What is Aadhaar?

The nine-member judicial bench concluded: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

The Supreme Court order is based on an array of petitions that have challenged the mandatory use of Aadhaar cards, which assign a unique 12-digit identity number to every Indian citizen. The Aadhaar database links iris scans and fingerprints to more than a billion people.

The government has maintained that Aadhaar is essential for all services including tax returns, opening bank accounts and securing loans, pensions and cash transfers for those entitled to welfare programs. It has rejected suggestions that the Aadhaar program poses a threat to civil liberties.

According to Nandan Nilekani, the creator of the Aadhaar system, trust and verifiability are important for any business. Hence the Aadhaar system’s positives will not be limited to the government, but spread to the private business sector too, as with an Aadhaar-backed identity, banks will be more confident in giving out loans and businesses, both big and small, more secure in knowing whom they are working with.

In fact, given the size of India’s population, something like the Aadhaar system might seem the easiest and most effective way to organize the payments of subsidies and benefits while keeping a check on administrative costs as well.

Misuse of Aadhaar

Critics, however, say the Aadhaar identity card links enough data to allow profiling, because it creates a comprehensive profile of people’s  spending habits, the property they own, subsidies they receive, tax returns they file and any monetary transaction they make.

There are also fears the data could be misused by a government that argues that Indians have no right to privacy. There have been recurring reports of Aadhaar details being accidentally released, including on government websites.

The Unique Identification Authority of India (UIDAI), the agency that governs Aadhaar, has repeatedly said that its data is secure. The court has asked the government to ensure a “robust regime for data protection” that would deliver “a careful and sensitive balance between individual interests and legitimate concerns of the state”, according to a report on ndtv.com.

As a concerned citizen of India, I have also questioned the legality of making Aadhaar cards mandatory and had been putting off getting one until the government ruled this month that from October 1 even death certificates will require the Aadhaar number. Until now I have ignored warnings both from my bank and my mobile-network company to link the Aadhaar number.

Running from pillar to post

While my experience of getting an Aadhar card was relatively easy – I just had to go with a valid ID and proof of address, fill in a form, and wait for an hour to get the iris and fingerprint scan done – many people have had to devote days to go through this process. A friend living abroad who is still a citizen of India had to spend four days of a 10-day leave at the Aadhaar office to get his paperwork done.

Speaking to officials tasked with taking photos and getting the entire process done, we got to know that in each center every day 100 applications are accepted, of which 40 are rejected on average because people make mistakes with names or addresses, or instead of just making an application for an address change, they come and try to get a new Aadhaar card done.

“It’s a herculean task and sometimes we find it impossible to keep our patience. So many people are illiterate or semi-literate, so explaining things to them and getting things done for them is sometimes very difficult,” said an official.

India has a large aging population, people who never step outside their homes or are bedridden. In such cases Aadhaar officials go to their homes and get the card done, but for that one needs to produce a doctor’s certificate stating why the person cannot leave home and a host of other papers and IDs have to be presented at the time of application, making the whole process cumbersome.

However, an Aadhaar drive has been undertaken in many schools, and my son got a card made in school, for which I did not have to do any running around.

What happens now

Aadhaar gives the government complete control over one’s life. While it gives the government the ability to keep track of all your financial transactions and take a peek into your bank accounts, if you rub officials the wrong way they might make your existence null and void just by removing your Aadhaar number from the database. You will then not be able to make a single transaction, access your own accounts or prove your identity.

While Thursday’s Supreme Court verdict does not comment on whether the government’s demand for Aadhaar to be linked to all financial transactions or to mobile-phone numbers amounts to an infringement of privacy, the matter will in due course be decided by a separate and smaller bench of the high court.

The court’s decision will come as welcome relief to Indian citizens still recovering from the mess of demonetization, seen as another attack on personal liberty. Cash transactions have been the backbone of the Indian economy, but with so-called digitization and the push for a cashless economy sans the infrastructure required, and by forcing citizens to hand over their hard-earned money to the banks, the government in effect took away whatever control common people had over their personal finances.

Impact on LGBT community

The Supreme Court judgment on privacy has also ushered in hope for the LGBT community, which was dealt a blow by the same court when it criminalized sexual acts between two consenting adults of same sex.

In its judgment last week, the apex court concluded that privacy includes at its core the preservation of personal intimacies and that sexual orientation is an essential attribute of privacy. The court held that privacy and protection of sexual orientation lie at the core of the fundamental rights under Articles 14, 15 and 21 of the constitution.

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Amrita Mukherjee

Amrita Mukherjee is a freelance journalist and author. She has worked in esteemed publications in India and Dubai and she blogs on women's issues at www.amritaspeaks.com.