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From 'Aadhaar' to 'Arogya Setu' The concern over 'Right To Privacy' continues

Written by: Arpita Dey, Student, Government Centre Of Legal Education, Hooghly Mohsin College

"Absolute power corrupts absolutely" : Lord Acton

Aadhaar Act - Down The Memory Lane :

'Aadhaar' means foundation or base. Aadhaar number is a 12 digit unique identity number that can be obtained voluntarily by residents of India based on their biometric & demographic data. The data is collected by the 'Unique Identification Authority Of India' (UIDAI) a statutory authority established in January 2009 by the government of India. Aadhaar has been a part of several rullings by the Supreme court of India. In 2012 Justice K S Puttaswamy (Retired) filed a petition in the form of a PIL (Public Interest Litigation) to the Supreme court of India challenging the constitutionality of Aadhaar based on the ground that it violates the 'Right To Privacy' The argument that there was no such constitutional right to privacy was from the side of government basically based on the conclusion of previous rullings given in M.P Sharma V. Satish Sharma[1] as well as in Kharak Singh V. State Of U.P[2] however in 2017 putting an end to all controversies a 9 judge bench of the Supreme court in K.S Puttaswamy V. Union Of India[3] passed a remarkable judgement of 547 pages stating that : Privacy is a constitutionally protected right in India which emerges primarily from Article 21 of the constitution[4]. This case of Justice Puttaswamy not only led to supreme court adding right to privacy in the list of Fundamental Rights guaranteed by the constitution of India but also ended up as a means by supreme court to struck down few sections such as Section 56, 33(2) of The Aadhaar Act, 2016 [5]as those sections were a threat to the privacy of public at large. We can safely say apart from striking down those above mentioned sections the supreme court upheld the constitutional validity of Aadhaar Act leading to the amended : The Aadhaar And Others Laws (Amendment) Bill, 2019[6] which allows voluntary use of Aadhaar as proof of identity for users to open bank accounts & getting mobile connections, this bill also provides for penalty and jail term against any violation to right to privacy. According to Information Technology Minister, Ravi Shankar - This amended addressed the privacy & security concerns of public. He quoted that, Aadhaar data can only be shared where there is a threat to national security or there is a court order.

The Arogya Setu App - A Tool To Fight The Pandemic :

After Aadhaar controversy the concern of public at large over right to privacy is again at its peek during this Covid19 pandemic due to the emergence of Arogya Setu app. Government has used this app as a means to fight the pandemic. By location tracking activity this app lets the users known whether they have been near a person with Covid-19 or not. This app collects information and the data gets shared with the government. This app's requirement of a constant connection with bluetooth does hamper the 'Right To Privacy'. Even after the government claiming that, the data is not going to be used for any other purpose in the eyes of law[7]. it's indeed a threat to privacy.


Right To Privacy - Not Absolute :

The supreme court in the case of Puttaswamy[8] only had clarified that, right to privacy is not an absolute right - it must be the subject of a three-tier test -

(1) Legality

(2) The need for a legitimate aim

(3) Proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.


'Absolute power corrupts absolutely' (By Lord Acton) is a very popular phrase and the world specially the officers of law & orders are very firm believers of it. Thus even right to privacy is a subject to reasonable restrictions.


Conclusion :

This Covid19 pandemic is a crisis like never before which has turned the whole world upside down. 'Desperate times call for desperate measures'[9] is a very common phrase and quite appropriate in the current scenario. This is the time when the world is operating by the theory of 'Legal Pragmatism' certain rights are being violated, age old enactments are being enforced like that of The Epidemic Diseases Act, 1897[10]. At the moment the sole aim is to somehow control the spread of the virus and saving lives.... and talking about the app it does pass the three tier test of right to privacy as if we look at the bigger picture it has a legitimate aim that is securing public health in times of the pandemic. Thus it operates as a reasonable restriction to the much controversial 'Right To Privacy


References

[1] 1954 AIR 300, 1954 SCR 1077 [2] 1963 AIR 1295, 1964 SCR (1) 332 [3] https://indiankanoon.org/doc/127517806/ [4] https://www.supremecourtcases.com/ [5] https://en.wikipedia.org/wiki/Aadhaar_Act,_2016 [6] https://uidai.gov.in/images/news/Amendment_Act_2019.pdf [7] https://www.mygov.in/ [8] K.S Puttaswamy V. Union Of India [9] Greek physician, Hippocrates [10]https://www.indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf

Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.

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