The beauty of democracy is that some things can be left unstated. Often, this is because the obvious needs no special assertion. The right to privacy is such an obvious right that it does not appear in the Constitution in so many words. That does not empower Attorney-General Mukul Rohatgi to tell the Supreme Court that the right to privacy is not a fundamental right. Such a stand can enable interested parties to make unauthorised use of information provided by citizens to legitimate authorities for legitimate purposes. Rohatgi made this plea while defending the government before the three-member bench hearing the Aadhaar case. The issue before the court is whether the government is empowered to gather biometric details of its citizens, and that too mandatorily. The court is bound to hear this aspect of the case before pronouncing its verdict. Already the Unique Identification Authority of India (UIDAI) has prepared Aadhaar cards for a massive majority of the population.
More, virtually the entire population, perhaps, may be covered by the time the court pronounces its judgment. Where will that leave the basic issues involved? Given the porous state of information technology today, as evidenced by the revelations of Wikileaks, for example, it is possible for a person or a company to steal Aadhaar data. Although such information can be legitimately used to track down fugitive criminals or to identify them, it can also be misused for purposes of political vendetta or financial fraud or criminal blackmail.
These must be taken into account even as we recognise the principle that all rights are subject to reasonable limits set in larger interest of society. Whatever the apex court might have said in the past, it had assumed the fundamental nature of the right to privacy in several subsequent judgments. In today’s technological world, life is not possible without the citizens enjoying some measure of privacy under law. In the Aadhaar case, the contentious parts are more vexatious especially since the UIDAI has authorised some private companies to collect biometric and other details of tens of millions of people. Common sense cries out for measures of protection provided by the law. The Attorney-General should have paid heed to the Expert Committee report of 2012 outlining detailed ideas for a Privacy Act.