The country is poised at an intriguing moment: a nine-member bench of the Supreme Court debates whether the right to privacy should be made a fundamental right, following which another bench will decide on whether Aadhaar violates this right. Even as the deliberations continue, what stands out is the Centre’s disdain for privacy rights of any sort, as opposed to an effort to acknowledge privacy rights in some form and introduce caveats. This became evident a few months ago when former Attorney General Mukul Rohatgi argued, rather flippantly, that the individual's rights over his body cease to exist when he submits to a drunken driving test. This is a specific situation, compared with the implications of one’s personal habits, finances, fingerprints and irises being placed in the public domain without obtaining individual consent — ostensibly for the common good. Those brushing aside the privacy argument also suggest that, with over 100 crore citizens already having submitted their biometric details without so much as a murmur, it is only a select few who are blowing the privacy issue out of proportion. This view smacks of a ‘might is right’ mindset, which is antithetical to safeguarding individual liberties. It also disregards the fact that consent is not necessarily an informed one. Whatever the court ruling on the subject, the debates need to be more nuanced than what is in evidence so far.
All rights may need to be hedged with caveats, and privacy is no exception. The rights to privacy of an individual have been upheld in court rulings in specific instances such as sexual preferences of LGBTs, or in cases where private lives of public personas have been portrayed in film or print, offending the individual concerned (Phoolan Devi in Bandit Queen ). But what we are dealing with today is a different kettle of fish — loads and loads of digital data of individuals (financial, behavioural) being at the disposal of the state and private interests. The fact of the matter is that Aadhaar seeding of a breathtaking sweep of databases is without precedent anywhere else in the world. This is not to deny the potential of Aadhaar in delivering welfare benefits; however, its propensity to become a weapon in the hands of a surveillance state cannot be dismissed altogether.
It appears that freedom of expression, the right to privacy and other individual liberties that mark a mature democracy, are coming under a cloud. As in Europe, where stronger data protection laws will come into force from 2018, India should strike a blow for privacy and individual liberties.