Five-judge statute Bench to decide on Aadhaar validity:

Five-judge statute Bench to decide on Aadhaar validity:

Context

• The Supreme Court has decided to constitute a five-judge Constitution Bench to hear petitions from November against the validity of the Aadhaar scheme.
• A separate Bench of Justices have issued notice to the government on a petition filed by advocate Raghav Tankha, challenging the mandatory linking of Aadhaar with mobile numbers.

What is the concern?

• The concern is that the linkage orchestrated by the Union of India in arrangement with private telecom service providers is in violation of the fundamental right to privacy.

Setting up of a constitution bench

• A Constitution Bench may be set up to decide, once and for all, the various Aadhaar challenges pending before the court since 2014 instead of passing any temporary orders.
• The government decided to extend the time during an urgent mentioning in the Supreme Court by petitioners who have challenged both the validity of the Aadhaar scheme and the law passed subsequently in 2016.
• The decision to set up a five-judge Bench comes despite Justice Rohinton Nariman’s separate judgment in the nine-judge Bench declaring privacy as a fundamental right.
• Justice Nariman’s judgment had directed the Aadhaar petitions to be posted for hearing before the ‘original’ three-judge Bench.
• This ‘original’ Bench had referred the petitions for hearing before a five-judge Bench, which found it necessary to first decide whether privacy was a fundamental right or not before hearing the Aadhaar petitions.

What are the various features of Right to Privacy?

• Privacy is a constitutionally protected right emerging primarily from the guarantee of life and liberty in Article 21 of the Constitution.
• It includes the preservation of personal intimacies, sanctity of family life, marriage, procreation, the home and sexual orientation.
• Privacy connotes a right to be left alone. It safeguards individual autonomy and recognizes one’s ability to control vital aspects of his/her life.
• Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.
• Informational privacy is a facet of this right. Dangers to this can originate from both state and non-state actors.

Implications on Aadhaar:

• Aadhar initiative requires collection of personal data from residents of India, and this has resulted in controversy regarding its potential to be missed. This is so because:
• It requires collection of biometric details like scanning and finger prints which are essentially crucial details and could be misused.
• Cyber space is a vulnerable space and is prone to threat.
• Cyber security architecture is not very strong in India.
• Aadhaar lacks statutory back up and is also running on an executive order, which has also raised questions.
• The SC ruling will impact daily lives of the people since it has implications for matters ranging from collection and sharing of personal data to the government’s move to make Aadhaar mandatory for benefits of social welfare scheme.

What is Aadhaar?

• The Aadhaar is the name of the Unique Identification Number that the Unique Identification Authority of India (UIDAI) issues to every resident of India.
• It is a twelve digit number which is linked the resident’s demographic and biometric information.
• The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2009 by the Government of India, under the Ministry of Electronics and Information Technology, under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016

Petitioners have challenged the Aadhaar scheme on the following grounds:

• Expressing the fear that the data being collected by private agencies may be misused.
• Questioning the proposal to link Aadhaar with PAN cards and phone number.
• Making the unique ID number mandatory for availing government benefit.
• The petitioners are challenging the nature of information collected, which includes biometrics and its alleged unlimited use by government agencies.

What is the need of Aadhaar?

• The Aadhaar Project is an attempt to aid in real time verification.
• The objective of the scheme is to issue a unique identification number which can be authenticated and verified online.
• A large part of the Indian population had no IDs or relied on IDs like ration cards and Voter Cards.
• This necessitated the need for a single digital ID which could be verified anytime, anywhere in India.
• The Aadhaar would also facilitate the access to host of governmental benefits and services.
• For the effective enforcement of individual rights it became necessary to have a unique identification number.
• A clear registration and recognition of the individual identity with the state is necessary to implement their rights, to employment, education, food etc.
• Aadhaar project has been linked to some public subsidy and unemployment benefit schemes like the domestic LPG scheme and MGNREGS. In these Direct Benefit Transfer schemes, the subsidy money is directly transferred to a bank account which is Aadhaar-linked.
• On 29 July 2011, the Ministry of Petroleum and Natural Gas signed a memorandum of understanding with UIDAI. The Ministry had hoped the ID system would help them eliminate loss of the subsidised kerosene and LPG. In May 2012, the government announced that it will begin issuing Aadhaar-linked MGNREGS cards On 26 November 2012, a pilot project was launched in 51 district.

What is needed to be done in context of Right to Privacy and Aadhaar?

• In view of the increased security required specifically for territorial privacy and data privacy, there should be a provision added to the Constitution of India.
• A provision that deals with multiple dimensions of privacy such as personal, territorial, communication and data/information.
• Such a provision would bring clarity as to the extent of the right to privacy.
• There is a dire need for a comprehensive privacy legislation which would ensure the protection of personal and sensitive data of people.
• There is also the need for an established regulatory body.
• This could be structured along similar lines as that of the data protection commissioner offices, which exist in Canada, Ireland.