Editor’s Note: A nine-judge bench, constituted by the Supreme Court will announce its verdict on Thursday on a batch of petitions challenging the validity of the Aadhaar scheme and the aspect of right to privacy attached to it. While the court has heard other matters related to Aadhaar, this case will specifically look at the right to privacy (or the lack thereof) of the Indian citizen.
The right to privacy is mostly understood as against other citizens or private bodies. For example, the right to privacy of a celebrity against tabloids publishing their pictures or the rights of the Facebook user over the data they give to the company. In the current case though, the issue relates to the rights Indian citizens have against their own government.
To get better understanding of the scenario, it will be useful to see how other jurisdictions (of different countries) treat this fundamental right.
The world’s oldest democracy takes the right to privacy fairly seriously. While the right to privacy is not mentioned in the US Constitution, the Supreme Court has interpreted several amendments to say that the right does exist. The Fourth Amendment prevents search without a “probable cause”.
Other amendments allow Americans to take certain decisions about their bodies and their private lives without government interference. Several other laws to protect privacy in the US are in place as well.
In particular the Privacy Act, 1974 is meant to protect individuals from unauthorised use of their records by a federal agency. It makes agencies accountable for the records they maintain and requires them to protect the accuracy of records. Agencies must also reveal the purpose for which are collecting information.
As far the privacy of one’s social security number is concerned, federal privacy law seeks to prevent the government from making the Social Security number into a nationally mandated identification number. The Privacy Act is supposed to stop states from mandating the use of a Social Security number for all citizen-state interactions. However a ruling by the US Court of Appeals for the 4th Circuit has created an exception in cases where the government wants to check if you have paid back taxes and child support. This has caused concern as now states can simply ask for the social security number before giving you any benefit by saying that they need to check if you have paid your taxes.
In 2015, Japan adopted a system of citizen identification which united personal tax information, social security and disaster relief benefits. It was launched amid protests by critics who were worried by the privacy concerns it posed.
The law gave all Japanese citizens and foreign residents a 12 digit ‘My Number’. The aim was to make administration more systematic and social welfare benefits more efficient, while also helping to cut down on tax evasion and benefit fraud. The government will eventually extend the system to bank accounts, as well, to keep track of of people’s assets for taxation purposes. It will first be voluntary from 2018 but could become mandatory by 2021.
Japanese law in itself does not explicitly provide for a right to privacy. But the right is read into Article 13 of the Japanese Constitution which provides for the right to “life, liberty, and the pursuit of happiness” and for the right for people to be “respected as individuals”. Further, the Act on the Protection of Personal Information, 2003 is the central data protection legislation in Japan and applies to personal information processing by data controllers. It mandates that when data is used, the purpose of that usage must be communicated to the person whose data is used. It further asks them to keep collected personal information safe, for example, from leaks. It requires that the information should only be provided after the particular citizen consents.
The ‘My Number’ programme has been implemented in co-existence with the privacy laws in Japan. As it is still being integrated into the Japanese daily life, the effects and clashes between privacy and governance are yet to be seen.
Europe generally is governed by the Data Protection Directive which restricts how information can be processed and used. It requires that member states “implement technical and organisational
measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access” and to establish judicial remedies for breaches. It also mandates the establishment of a public authority to monitor adherence to the directive.
Sweden was the first country in the world to give each citizen a personal identification number which must be used in essentially every interaction with the State. Every Swede memorises the number as a child. The Swedish tax authority makes everyone’s number is accessible to anyone who asks for it.
As far as the law is concerned, chapter 2, article 6 of the Regeringsformen (Instrument of Government) protects every individual from the public against intrusions to their personal integrity, if such an intrusion takes place without the approval of the individual and consists of surveillance or monitoring of the individual. As a general rule, the same protection applies to both Swedish citizens and foreigners, pursuant to chapter 2, section 25 of the Regeringsformen.
Further, the Personuppgiftslag (Personal Data Act) is the general legislation for the protection of personal information such as personal identification numbers, health records, and the like.
As Sweden follows the Scandinavian line of thinking, where the government benefits are an integral part of citizens’ daily life, privacy considerations seem to be at a lower priority for the Swedes.
Move towards e-governance means privacy concerns falling by the wayside
As is clear from this analysis of different jurisdictions, governments are interacting more and more with their citizens and this requires a uniform system of monitoring and maintaining data about them. Countries around the world appear to be picking more efficient governance over the privacy concerns such moves evoke.
As the Supreme Court hears the Aadhaar debate, it, too, has the choice between efficiency and privacy. And for the sake of India’s billion-plus citizens, let’s hope that it makes the right choice.