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Right to Informational Privacy Vs. Right to Receive Benefits: the Intricacies of the Aadhaar Battle the Supreme Court of India

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Right to Informational Privacy Vs. Right to Receive Benefits: the Intricacies of the Aadhaar Battle the Supreme Court of India Right to Informational Privacy vs. Right to receive Benefits: The Intricacies of the Aadhaar Battle The Supreme Court of India, in the case of Justice K.S. Puttaswamy & Anr v Union of India[1] (“Aadhaar Judgement”), combined with other writs and petitions, adjudicated on the legal validity and constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“Aadhaar Act”) and the overall scheme of Aadhaar in general. At the heart of the controversy, stood, and still persists in the backdrop, fundamental right to informational privacy juxtaposed with fundamental right to receive benefits, subsidies and other government services. It must be noted that on a conjoint reading of Universal Declaration of Human Rights, Directive Principles of State Policy, fundamental rights, as enshrined in the Constitution of India, and the judgement of the Supreme Court of India in the landmark case of Justice K.S. Puttaswamy & Anr v Union of India[2], it appears that both of these fundamental rights are recognised as the essence and basis of human dignity and autonomy. For the purposes of this Newsletter, we have adopted a two-pronged approach towards the issue as mentioned above. Firstly, as illustrated in Figure 1 below, we have endeavoured to flesh out the Supreme Court’s analysis on whether the encroachment of the State on informational privacy serves a legitimate purpose and is therefore proportional to the aim that the State seeks to achieve. Secondly, as illustrated in Figure 2 below, we have recorded the response of the Supreme Court and the key decisions therein on whether the Aadhaar Act, as it stood, before the Aadhaar Judgement, upheld the various principles of data privacy as enshrined in the draft Personal Data Protection Bill 2018 (“Draft Bill”), European Union General Data Protection Regulation 2016 (“EU GDPR”) and the existing data protection regime of India comprising of Section 43A and Section 72A of the Information Technology Act, 2002, as amended from time to time, (“IT Act”) and the rules thereunder. I. ENCROACHMENT ON INFORMATIONAL PRIVACY 1. How does the Aadhaar Act encroach upon the informational privacy of an individual? S 3 of the Aadhaar Act mandates that in order to obtain an enrolment number or an Aadhaar card, an individual is required to part with certain information, i.e., a) demographic information such as name, date of birth, address, gender and e-mail and mobile number (being the optional information); and b) biometric information such as fingerprints, iris scan etc. which is considered to be ‘Personal Sensitive Information’ under the Informational Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. Further, for the purpose of receiving any subsidy, benefit or service and as mandated under S.7 of the Aadhaar Act, an individual is required to undergo authentication that affirms his/ her identity. The concerns that arise in the aforesaid context is that, during the enrolment process, an individual has to part with certain personal information, including, sensitive personal information. Further, the agencies that collect and verify such information of the individuals are more often than not private entities thereby making such information vulnerable to misuse. Furthermore, the information is [1] Writ Petition (Civil) No. 494 of 2012 decided on 26 September 2018. [2] (2017) 10 SCC 1. stored and maintained in the Central Identities Data Repository (“CIDR”) under the supervision of the authority established under the Aadhaar Act. The necessary inference from this is that the CIDR has logs of information with regards to the time and manner in which the individual avails any particular service/ subsidy/ benefit. It appears that these information silos individually may seem inconsequential, however if such information is aggregated, it provides a picture of beings thereby raising the allegation of excessive surveillance by the State. 2. Is such encroachment lawful and necessary to fulfil a legitimate State aim? The Aadhaar Judgement adopted a settled principle of law that an encroachment on fundamental rights, such as informational privacy in this case, can hold ground provided that it satisfies the following conditions, as more specifically illustrated in Figure 1: Encroachment of Informational Privacy Figure 1: Test for determining the Requirement of Legitimate State Doctrine of justifiability of Law aim Proportionately restricting the right to informational privacy Legitimate goal stage Rationale connection stage Necessity stage Balancing stage a) Requirement of Law In accordance with the condition of “Requirement of Law”, it is imperative that the State action is sanctioned by a law. In the present case, the dispute arose on the ground that since the Government passed the Aadhaar Act in 2016 therefore the Aadhaar scheme that began from 2009 did not have the required backing of law. The Supreme Court adjudicated on the said dispute and held that the enrolment and authentication process conducted after the enactment of the Aadhaar Act has the required backing of law and is therefore valid. With regards to the enrolment under the Aadhaar scheme that began from 2009, it was held that S 59 of the Aadhaar Act specifically ratifies and provides legality to the all the enrolments under the Aadhaar Scheme retrospectively. b) Legitimate State Aim In the concept of welfare state, where measures are taken to ameliorate the sufferings of the downtrodden, the aim of the Aadhaar Act appears to ensure that the benefits, subsidies and services that forms a part of almost 3 (three) percent of the Gross Domestic Product (“GDP”), do not get pilfered and dissipated away by frauds and duplicates in the system, and reach the populace for whom they are designed/ implemented. Accordingly, the Supreme Court held that such right to receive benefits and subsidies has been considered as the essence of human dignity and the State endeavours in ensuring or furthering such right satisfies the condition of “Legitimate State Aim”. c) Doctrine of Proportionality There are four limbs to the doctrine of proportionality as discussed in the Aadhaar Judgement and as illustrated in Figure 1 above. The first limb of the doctrine i.e. legitimate State aim has already been covered in the point hereinabove. Accordingly, we have listed down the following issues as deliberated by the Apex Court: whether the State by means of the Aadhaar Act and the regulations therein furthers the aim that it seeks to achieve (Rationale Connection Stage)?; whether there are any less restrictive means that pursue the legitimate aim of the State or is there any alternate enactments to Aadhaar (Necessity Stage)? whether the benefits of Aadhaar outweighs the disproportionate effect that it has on the other rights of the citizens (Balancing Stage)? i. Rationale Connection Stage One of the key goals of Aadhaar is to issue a unique identity to the residents of India. Hence, each enrolment is biometrically de-duplicated against the biometrics of all residents, as is stored in the CIDR, to issue the Aadhaar number. This invariably implies that the mechanism to issue an Aadhaar number takes care of the duplication in the system. Further, S 4(1) of the Aadhaar Act states that an Aadhaar number, issued to an individual, shall not be re-assigned to any other individual, thus making each individual under the Aadhaar enrolment unique. Furthermore, reference must be made to S 5 of the Aadhaar Act, wherein it is mandated that the authority shall take special measures to issue Aadhaar number to special categories of person and to such other person who do not have any permanent dwelling house, thereby succinctly identifying the real beneficiaries of the State’s benefits and schemes and S 7 of the Aadhaar Act makes the establishment of this identity a condition for receipt of a subsidy, benefit or service. A conjoint reading of the aforesaid provisions leave no iota of doubt that the basic structure of the Aadhaar Act seeks to further the aim that the State seeks to pursue. ii. Necessity Stage In the instant case, the petitioners were not able to successfully demonstrate any less restrictive alternative to identify real beneficiaries, apart from the system of unique identity in Aadhaar and regulations therein as explained hereinabove, that may further the legitimate aim that State is seeking to achieve. Therefore, the basic structure of the Aadhaar held ground at the Necessity Stage. iii. Balancing Stage The court assessed the effects of the basic structure of the Aadhaar Act on the other fundamental rights, including informational privacy and whether such effect is disproportionate to the advantage that it carries. The court noting the allegation on the surveillance architect that the Aadhaar structure promotes, observed that, during the enrolment process minimal data is collected from the individuals and no information pertaining to caste, religion, tribe, medical history, income entitlements or the purpose for which the authentication is undertaken is disclosed and therefore such information is not collected, maintained, or stored by the UIDAI. This is to say that the authentication mechanism in the Aadhaar Act is purpose blind; accordingly, it was held that it is extremely difficult to create profile of an individual simply on the basis of biometric and demographic information maintained in the CIDR. Further, it was contended that the architecture of Aadhaar is probabilistic
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