The unanimous decision of the 9 judge constitution bench of the Supreme Court [SC] pronouncing right to privacy as a fundamental right as an integral part of the Article 21 [grants the right to ‘life’ and ‘liberty’] of the Constitution has been welcome by all sections – including the union government.
Prior to this, the position was vague as the founding fathers of the Constitution did not ‘explicitly’ provide for right to privacy as a fundamental right. An eight-judge bench of SC in M P Sharma’s case [1954] said so and the position was reiterated by a six-judge bench in Kharak Singh’s case in [1962]. The present decision by 9 judge bench overrules those two verdicts and lays down the law of the land for all time to come.
This is a big step forward in empowering citizens and removing the fear of an encroachment in their private life. But, it could be a big set-back for Modi – government’s plans to stop leakages in implementation of its welfare programs and curb tax evasion.
One must be wondering as to how the right to privacy gets connected with pilferage from welfare programs or tax evasion. To understand this, we need to look at the Aadhaar card – issued by The Unique Identification Authority of India (UIDAI). This is a12-digit unique identification number given to every citizen. Already, over one billion such cards have been issued.
Apart from usual information viz. name, age, address etc sought for issuing any statutory document such as PAN, driving license, ration card etc, Aadhaar card also contains biometric information viz. finger prints, iris scan etc. While, the former can be faked, the latter cannot – being unique to an individual. Hence, Modi – government decided to use Aadhaar as a foundation document to authenticate the identity of beneficiaries under various welfare schemes.
It has helped in eliminating millions of fake beneficiaries of subsidy on food under public distribution program [PDS], LPG subsidy and wages under Mahatma Gandhi National Rural Employment Guarantee Scheme [MGNREGA]. In turn, this has yielded saving to the tune of over Rs 60,000 crores [earlier, this money was being pocketed by corrupt bureaucrats and politicians]. The potential for savings by way of plugging leakages in these schemes year-after-year is huge.
Till date, the SC allowed use of Aadhaar on a ‘voluntary’ basis. In its interim order [August 11, 2015], it permitted its use for delivering subsidy on food under PDS and LPG subsidy besides social welfare schemes for “poorest of the poor”. In another order [October 15, 2015], it extended its use to MGNREGA, Pradhan Mantri Jan Dhan Yojana [PMJDY], employee provident fund [EPF], pension schemes and scholarships.
The ‘voluntary’ tag to permission was kept in view of a pending determination on the core issue of whether ‘Aadhaar infringes on the privacy of an individual’. This in turn, required a determination on the larger question of ‘whether right to privacy can be held to be a fundamental right under the Constitution’. Now, that a 9 judges bench has given its verdict in the affirmative, this raises serious doubts over whether the permission already granted will be continued.
What if a person refuses to part with his biometric data [being the unique feature of Aadhaar card] claiming infringement on his/her right to privacy? And, this is upheld by the apex court. The whole edifice of Modi – dispensation to make disbursement of subsidy and other financial assistance to the poor in a foolproof manner without any pilferage will collapse like a pack of card.
The SC has offered an olive branch saying right to privacy is not absolute; that it is subject to ‘reasonable restrictions’. Whether collection of personal information under Aadhaar will meet this criterion? This question will be addressed by a smaller bench of the apex court. Even if it is allowed, this could come with a plethora of conditions especially with regard to specified uses.
What if, the SC disallows its use for certain subsidies say fertilizer subsidy or power subsidy? What if, it disallows in areas like food subsidy or LPG subsidy where it is already allowed [albeit on voluntary basis]? What if it opines that Aadhaar won’t be allowed to be seeded on PAN? Or, it does not mandate its use for opening bank account or obtaining a driving license!
There are millions of fake PAN cards in use for tax evasion and other illegal activities such as money laundering. The seeding of PAN with Aadhaar and making it mandatory for filing IT return can help in reining in these activities. Team Modi has done it vide an amendment to the IT Act [Section 139AA]. Following this, over a million such cards were found to be fake and hence, deactivated.
Vide its order dt June 9, 2017, a Division Bench of SC upheld the constitutional validity of this amendment. But, that was before the decision by 9 judges bench. Post this, the order is likely to be reviewed and the axe could fall on the amendment.
The government is losing thousands of crores every year due to pilferage from schemes for subsidy on fertilizer and power. The direct benefit transfer [DBT] and use of Aadhaar for authenticating the beneficiaries can help in bringing about substantial savings. But, the fate of this will depend on the disposition of apex court.
All said and done, the far reaching pronouncement of SC is a big jolt to the ability of the government to effectively implement its welfare schemes without any leakages. The leeway available via ‘reasonable restrictions’ on right to privacy will be riddled with uncertainties even as every case will be subject to legal scrutiny.
Without doubt, people’s welfare has been sacrificed at the altar of the privacy of an individual. Those in the thick of celebrations over this judgment and not tired of narrating virtues of ‘privacy’ need to introspect as what majority of poor in this country look for?