Insights into Editorial: Privacy is a fundamental right

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Insights into Editorial: Privacy is a fundamental right

19 March 2016

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The Central government has forced the Aadhaar Bill through Parliament in a week. However, as cited by many experts, there are extensive threats to privacy contained within this legislation.

  • The Aadhaar bill seeks to institutionalise an extensive, pervasive database that links multiple other databases containing our personal information.
  • Many people are unhappy with the fact that the government passed the Aadhaar Bill with no public consultation about the sort of privacy safeguards that are necessary for such a database.

The right to privacy in India:

The debate over Right to Privacy began in late 1940s. While drafting the Constitution, amendments were moved to insert safeguards against search and seizure within the fundamental rights chapter.

  • However, Dr. B.R. Ambedkar pointed out that these safeguards were already provided by the Code of Criminal Procedure. He also observed that adding these safeguards to the Constitution would make it impossible for the legislature to tamper with them.
  • As a result, amendments were not passed. But, debates over privacy issue were disappointing since they offered no discernible reason for this choice.

Supreme Court’s observations:

Recognizing the gaps, the Supreme Court soon read the right to privacy into the Constitution. Progressively, in case after case, it realised that the rights to liberty and freedom of expression cannot survive if the right to privacy is compromised. It began with recognising people’s rights against government intrusion into their homes and went on to build this norm over the years across a variety of cases.

Main concerns:

The Aadhaar database is a dangerous thing in itself. This database could cause widespread disaster if breached. Despite multiple assurances of safety, it has offered citizens no guarantee of compensation or recompense if its poor choices endanger them.

The two enormously significant exceptions permitted under the Bill have further increased concerns. The exceptions permit the government to access the database in two separate ways-

  1. One way is if a district judge orders disclosure of information. This is very dangerous if one bears in mind that we have inadequately trained district judges all over the country, and that they are not given enough support to understand the implications of a database like Aadhaar. Also, the legislation offers no avenue where the affected party may appeal if her rights are affected. This creates a huge window for access and misuse of the database.
  2. Under another route, a Joint Secretary authorised by the government can direct disclosure of information “in the interests of national security”. This direction again leaves the affected party out of the equation, and nothing in the legislation compels any kind of public or independent oversight that may help ensure that there is no abuse of power.

What needs to be done?

  • It is necessary to take every possible precaution when building such a big database. It is also necessary to ensure that whoever creates a hazard by leaking the information takes full responsibility for the ill-effects.
  • The government should also provide internal procedural safeguards with independent external monitoring for the protection of rights.
  • Also, known and accessible remedies need to be made available to those whose privacy is violated. The remedies are supposed to include thorough and impartial investigation and the option of criminal prosecution for gross violation.
  • The Aadhaar Bill excludes courts from taking cognisance of offences under the legislation, requiring that the authority that runs Aadhaar consent to prosecution for any action to be taken under the legislation. This part of the Bill completely undermines all the safeguards that do exist within it, since citizens cannot access these safeguards without co-operation from the authority which is arguably in a position of conflict of interest. Hence, it is necessary to revisit this provision.

Conclusion:

If privacy has to be secured meaningfully, then some limits have to be placed on the government’s ability to gather information. Also needed is a comprehensive law to protect the privacy and personal data from unauthorised surveillance and misuse. Anything short of that will leave the citizen short-changed.