Economy

Aadhaar verdict: The Supreme Court has upheld the citizen’s right to privacy

Updated : September 26, 2018 02:53 PM IST

The Supreme Court verdict on Aadhaar is balanced and offers something for both Aadhaar supporters and detractors.

 The verdict is clear that mobile service companies along with other service providers should delete the Aadhaar data they have collected.

Problem is no mechanism for ensuring such deletion has been specified.

The Supreme Court verdict on Aadhaar is a balanced and appropriate judgement, which offers positive takeaways for both Aadhaar supporters and detractors. The verdict will shield the biometric ID program from being the burning political issue it ended up becoming. The court has effectively upheld the right to privacy of a citizen through its judgement.

It is commendable that Justice YV Chandrachud has not just understood but highlighted the risks posed by sensitive data like Aadhaar stored in cellphones or transmitted using cellphones, when these devices today are extremely vulnerable. Allowing service providers to use Aadhaar as the basis for entity authentication would not only risk user privacy but also render their data open to be exploited by cyber criminals.

Saving Citizens From Data Theft

Identity theft crimes and cyber impersonation would have clearly become the new modus operandi and it would have be very difficult to investigate such cases and also prove guilt in a court of law. The Supreme Court has struck down Section 33(2), Section 47 and Section 57 of the Act as being unconstitutional and the rest of the Aadhaar Act stands constitutionally valid and enforeceable.

Section 33 dealt with disclosure of Aadhaar data of an individual in national interest to authorised personnel or access to data by a court for identity authentication. Striking down this section has upheld the fundamental right to hearing and representation before access and usage of Aadhaar data for any form of implication.

Section 47 excluded the jurisdiction of courts under the Aadhaar Act and only authorised personnel could file complaints. Clearly, this provision was arbitrary and not giving citizens a level footing to seek judicial redressal.

Section 57 referred to usage of Aadhaar data for identity authentication by Body corporates and persons, and it is in pursuance of this provision that mobile wallet service providers, banks and mobile service providers sought Aadhaar verification. The striking down of this section puts an end to mandatory Aadhaar verification.

The removal of this provision has big ramifications because it also strikes down the Aadhaar linking to bank accounts, mobile numbers along with all service providers seeking Aadhaar data for verification and linking. It is clear that Aadhaar would be a biometric identity proof only and that too not mandatory for private entities to use and so not compulsory for citizens to furnish.

Such data can now be used only for government services, and children cannot be struck out of government schemes for not having an Aadhaar card.

Will Mobile Phone Operators Delete Our Data?

The verdict is clear that mobile service companies along with other service providers should delete the Aadhaar data they have collected. But no mechanism for ensuring such deletion has been specified.

Also, with the Privacy Bill not yet being enacted, as citizens we do not have the right to access to our data to know if it has been indeed been deleted. Also, the bill does not have a proviso on the absolute right to be forgotten, and this will raise issues about the already floating around Aadhaar data even when the bill is enacted.

The Supreme Court verdict clearly upholds the Aadhaar Act as not being unconstitutional and the act of collecting biometric data as not being illegal.

In a way, a certain level of right to privacy of Indian citizens stands enforced. The verdict is brilliant by the Supreme Court and it gets my thumbs up.

Puneet Bhasin is a cyber law and privacy law expert. She is founder and president of Cyberjure Legal Consulting and Cyberjure Academy.

>>Read our full coverage on Aadhaar verdict here