European court judgment could guide arguments on Aadhaar

Even as a Constitution Bench of the Supreme Court of India examines the vexed issue of the Constitutionality of the unique biometric identification scheme, lawyers for the petitioners, who have challenged the Aadhaar, are likely to cite a December 2016 judgment of the European Court to buttress their point.

For in that landmark judgment, the European Court ruled that the government's intent to curb crime couldn't be a valid basis for surveillance of all citizens and such a thing was violation of the citizens' fundamental rights and the right to privacy.

Through the judgment, the court had struck down a law that required all citizens to preserve computer and telecom data for one year.

"Due regard to the Principle of Proportionality also derives from the Court's settled case-law to the effect that the protection of the fundamental right to respect for private life at EU level requires that derogations from and limitations on the protection of personal data should apply only in so far as is strictly necessary," it said.

Incidentally, the doctrine of proportionality was declared a law in the landmark judgment of November, 2000 by the Supreme Court bench of Justices M Jagannadha Rao and UC Banerjee in the Om Kumar and others versus Union of India case.

The European Court has also held, "Further, while the effectiveness of the fight against serious crime, in particular organised crime and terrorism, may depend to a great extent on the use of modern investigation techniques, such an objective of general interest, however fundamental it may be, cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight," it added.

Sometime back, a nine-Judge Constitution bench the Supreme Court of India ruled that Right to Privacy is a right guaranteed under the Constitution.

Last month, the apex court bench of Justices Rohinton Nariman and Sanjay Kishan Kaul had also declared as unconstitutional the two stringent conditions for grant of bail under Section 45(1) of Prevention of Money Laundering Act.

Five years ago, former Karnataka High Court Judge KS Puttaswamy filed the first appeal challenging the legality of Aadhaar. 

Since then, many others have joined the legal fight and, now, there are almost 38 petitioners represented by a battery of lawyers fighting for the right to privacy.

Though the top court has restricted the use of Aadhaar, the Centre has all but made Aadhaar mandatory through various acts, notifications and circulars. This mandatory linking of the Aadhaar card has also been challenged among many other aspects.

The Centre's main aim to introduce Aadhaar was to cut down on corruption in the system and target delivery of benefits and services directly to the beneficiaries. It hoped by cutting down the middle-man, almost 100 per cent of the benefits would reach those who most required it.

However, since its introduction, the Aadhaar has taken on a life of gigantic proportions and has been morphed into a tool that would make all non-aadhaar cardholders die a virtual civil death. Reports of data breach, misuse of private information, glitches in the system and more that are coming out in the public has not softened the government's stand and has fuelled the debate surrounding the breach in fundamental right to privacy.

According to the European court's judgment, the rules are ultra vires of the Act and even if they are incorporated into the Act, such general surveillance for ostensibly detecting crime was violative of privacy right and therefore unconstitutional.