Monday, 7 August 2017

The high-profile privacy hearings have become a red herring or a smokescreen obscuring the real dangers of the Aadhaar biometric identification system

In my comment posted in response to a blog post by Gautam Bhatia at https://indconlawphil.wordpress.com/2017/08/03/the-right-to-privacy-hearing-problems-and-prospects/#comments I argue that the high-profile privacy hearings have become a red herring or a smokescreen obscuring the real dangers of the Aadhaar biometric identification system. 

Gautam Bhatia's post refers to the ‘main’ ground of challenge to the Aadhaar scheme as that involving concerns around the right to privacy. The 9 Judge Bench heard arguments about the existence and status of the right to privacy in the Indian legal system.

Gautam Bhatia urges the Court to issue a judgment confined strictly to the legal principles involved in the abstract and to not limit the scope and meaning of the right without a specific fact situation at hand.

Yet the 9 Judge Bench heard some arguments based upon the Aadhaar scheme and we can be certain that the Aadhaar scheme will find mention or discussion in the 9 Judge ruling on the right to privacy.

It is my opinion that the challenge to Aadhaar is being framed too narrowly around privacy and there are other more serious concerns about Aadhaar and facts about the Aadhaar biometric identification system that have not been placed before the Supreme Court or are being sidelined by the focus on the privacy right. These are concerns that Aadhaar in its very design and implementation more fundamentally violates the right to identity, to person-hood, to citizenship and consequently the right to life itself. The security concerns are also extremely important and are being overlooked.

I had posted three comments here in the above context, which Gautam Bhatia deleted on the ground that they were off-topic.

So let me make the topical relevance clear. Surely discussion about the inadequacy of the framing of a legal challenge is relevant to the discussion about how the Court might respond to the arguments before it on a particular framing of an issue.

There is an LSE report on the aborted UK biometric identity project that sets out several concerns, some of which fall within the privacy concept and others which don’t. See http://www.lse.ac.uk/management/research/identityproject/identityreport.pdf

It is also my view that by centering the Aadhaar challenge around privacy, the Aadhaar legal challenge might really be getting sabotaged and is being mishandled.

I do think my remarks are topical as I question the very focus of the 9 Judge Bench which emanates out of the Aadhaar petitions and which will be used by a smaller Bench to eventually decide the Aadhaar cases.

The problem with the Aadhaar hearings appears to be that the hearings are taking place without a complete narrative of all relevant facts around Aadhaar. It is the facts that help a Court determine the legal issues at hand. It is my position that the legal issues around Aadhaar are not adequately enumerated before the Court. And that the high-profile privacy hearings have become a red herring or a smokescreen.

We can all predict where the privacy hearings will go. The Court will hold that it is a fundamental right subject to restrictions. The 9 Judge Bench will certainly venture to discuss what these restrictions might be as well as what the right to privacy may itself include.

The impact of this ruling on the Aadhaar petitions will depend upon whether or not the Court subsequently finds that Aadhaar either does or does not infringe the privacy right or does so within permissible limitations. The Court will direct the Government to ensure that the data base is secure and that data protection laws are framed and that privacy rights are protected. But Aadhaar will stay.

But in this focus on privacy by the constitution of the 9 Judge Bench, the real concerns about Aadhaar will not be heard. These have not been highlighted until now in the hearings. For instance, why has the Supreme Court not been told that the digital biometric database of 1 billion Indians can never be secured and that we the citizens have no idea who stores, secures, accesses or backs up this data. Many of the Aadhaar related concerns which will end up being discussed as privacy concerns are really concerns about the right to identity, to person-hood, to citizenship, to a secure identity, to recognition by the State. These need to be addressed by attacking the Aadhaar system as a concept. The Right to Privacy will not help to make these points.

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