The government has only itself to blame for the slapdown it received from a three-judge Supreme Court bench on Wednesday (7 October) on extending Aadhaar even on a voluntary basis beyond LPG and the public distribution system. The court said “nyet” even though the government had marshalled a solid phalanx of allies, including the Reserve Bank, Sebi and other financial regulators on its side.
The court refused to blink for a simple reason: having mandated a five-judge constitutional bench to look at the privacy issues posed by Aadhaar, it hardly made sense for it to effectively frustrate a future verdict by changing the reality on the ground in the meanwhile. With 90 crore Aadhaar numbers already issued, it is hardly possible for any court to ask any government to scrap it completely without inviting the charge of causing a huge waste of public resources. So a stay is warranted at this stage.
The government lost its case the minute it argued a few months ago that the right to privacy was not a fundamental one, basing its strong views on an earlier eight-bench Supreme Court verdict. This is hardly the kind of stand any liberal would take, for the issue is not whether privacy is a fundamental right or not, but whether it is a right citizens ought to enjoy. If a state can collect and control my biometrics, which are a part of my body, it can conceivably tell women they have only limited rights over their bodies. Or that your bedroom is also the state’s domain in some circumstances.
Illiberal India has, since the Nehruvian era, effectively trampled on most rights, including fundamental ones like the right to free speech. However, we do enjoy at least truncated rights in many spheres. The right to privacy is certainly not something one should abandon as unimportant in a person’s life, however, poor she may be.
The problem with Aadhaar is that it is both a necessity and an abomination. No civilised country lacks a universal identity system that is governed by a legal statute. But Aadhaar is a great idea wrapped in the sin of near-illegality. Given the difficulty of obtaining legislative sanction for it, the UPA used the tentacles of a coercive state apparatus to push Aadhaar. The poor and the needy rushed for it, for Aadhaar was whispered to be vital for entitlements and thus made. Mandatory covertly. The poor also voluntarily embraced it because of the dignity it gave them through an officially recognised identity system.
But a person’s biometric data – fingerprints and iris prints – is his personal property. You cannot capture it and store it in a database without a guarantee of data protection and privacy backed by a strong law against misuse. So before Aadhaar is extended to every form of use by the state, a law to prevent its abuse is a must.
The Modi government erred in thinking that if Manmohan Singh could do this without moral compunctions, so can we. This is wrong. A semi-illegal thing remains semi-illegal and unethical even if one is not doing anything more than what was done before. The right thing to do is to bring the law first and then extend Aadhaar.
To be sure, the Supreme Court too could have done better than just sit on the issue. Instead of just extending a stay that delays an important subsidy reform of the government, it could have said the scheme can be extended only after a law is passed, even as the court debates the privacy issue. A law to guard private data is hardly something any court is going to strike down.
The government’s priority should be a law to legislate Aadhaar with strong provisions against misuse. Modi has to correct Manmohan’s mistake, not compound it.