Arvind Datar, a Senior Advocate practising in the Supreme Court of India, in conversation with Nehmat Kaur discusses why making Aadhaar compulsory through executive decisions is illegal.
NK: What are your reflections on the recent Privacy judgment?
AD: The recent judgment is a landmark ruling that results in greater protection of individual rights. The nine-judge bench has demarcated the contours of the right to privacy and identified the facets of these rights. For example, they have divided privacy into physical privacy, informational privacy and decisional autonomy. By overruling two earlier judgments, they have made it very clear that the right to privacy is an essential part of the fundamental rights under Part-III of the Constitution of India.
NK: Can you explain to us in brief what the Supreme Court held in the Aadhaar/PAN judgment given by Justices A.K. Sikri and Ashok Bhushan?
AD: The decision of the Supreme Court in Aadhaar/PAN judgment now enables the Government to insist on citation of Aadhaar Number wherever the assessee has the particular number. The Supreme Court rejected the contention that Aadhaar Cards are required only for persons who want to claim subsidies, benefits, etc. under the Aadhaar Legislation. In fact, the Aadhaar Legislation is titled The Aadhaar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services) Bill, 2016. Further, in three Supreme Court orders, it was categorically held that Aadhaar can be insisted upon only for certain types of transactions. This was based on undertakings given to the Supreme Court by the Attorney-General. The Supreme Court ruled that, despite this undertaking, the legislation can pass laws to the contrary. It also rejected the contention that what is voluntary under the Aadhaar Act cannot be made mandatory under the Income-tax Act. Actually, the petitioners demonstrated that the reasons given for insisting of Aadhaar number to be submitted in income-tax return were without any basis and Aadhaar numbers will not weed out fake PAN cards. However, this plea was also rejected.
NK: What are the implications, if any on the Aadhaar/PAN judgment in light of the recent privacy judgment?
AD: The Aadhaar/PAN judgment had made it very clear that they will not deal with the privacy issue. Therefore, the recent privacy ruling will be applied independently of the Aadhaar/PAN judgment when the validity of the Aadhaar Card is taken up for hearing.
NK: Do you think there is benefit in linking Aadhaar for various services like mobile numbers and bank accounts?
“AD: There is no benefit in linking Aadhaar for mobile numbers, bank accounts, school examination and so on. There is no reason why a person’s bank account, which he has held 30/40 years, should suddenly become non-operational merely because he does not have an Aadhaar Number.”
It is our repeated contention that an Aadhaar card under the parent Act is entirely voluntary and cannot be made compulsory in an indirect manner. Making the Aadhaar compulsory through executive instructions is completely illegal and contrary to the directions of the Supreme Court.
NK: A committee has now been formed to draft a data protection/privacy law for the country. What are some key features that you think it should incorporate?
AD: The new committee has to give contours for a data protection/privacy law. It is hoped that they have wide consultation with all stakeholders. The new data protection law will be particularly important in the context of E-Commerce and other websites which have access to information about the transactions entered into with individuals.
” They should also undertake a cost benefit analysis because a person may be willing to give certain private information in return for various benefits. The benefits of the internet age are enormous and the information that is parted with voluntarily does not violate privacy.”
The nine-judge bench has made it very clear that the privacy law protects only that which has not been voluntarily parted with.
Nehmat Kaur is a Lawyer working at Lawyers Collective.
