Courting Controversy: Aadhar[ing] to the rule of law

by Nakul Dewan.It might just be sheer coincidence, but is more likely the reality of the growing influence of the internet on the rule of law, that three major jurisdictions – the European Union, the United States and India – have been recently faced with the judicial debate on the possible misuse of private information by national governments and an individual’s right to privacy..The European Court of Justice’s decision on 6 October in Maximillian Schrems v Data Protection Commission (C-362/14) brought down the 15-year-old “safe harbour” treaty between the United States and the European Union, on the backing of which internet companies freely transferred data from Europe to the United States..Schrems had challenged the safe harbour provisions, which allowed Facebook Ireland to contractually bind Schrems to have his personal data transferred to the servers of Facebook in the United States, on the ground that the laws in the United States were simply not adequate to protect an individual’s data from surveillance activities by United States’ public authorities, in particular the National Security Agency (the NSA)..Schrems’ assertions had been backed up by Edward Snowden’s revelations, which showed that national security concerns were not the only basis for the NSA accessing personal data. In ruling that Schrems’ claim was indeed correct, the ECJ reiterated two basic fundamentals principles..The first was,.“…legislation permitting public authority to have access on a generalized basis to the contents of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life….”.And the second was,. “…..legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection…….” .In similar vein, our Supreme Court was engaged with hard-hitting advocacy in the Aadhar case last week; the hearing will now restart on October 14 before a Constitution bench of 5 judges. While the broad question relates to the existence of a fundamental right to privacy, at the heart of the controversy is the concern that private information can be misused by the government because signing up for Aadhar digitalizes all possible information about an individual, including biometric data and iris scan..To assert that people who voluntarily sign up to Aadhar, as they do to various agreements on the internet, consent to lose their privacy by allowing their personal data to be electronically stored and accessed, is an oversimplification of the issue. The reality is that the internet plays an irreplaceable role in everyone’s daily lives, and to not be part of the pack leaves a person in the dark ages. Further, the reason why one goes through the trouble of reading the terms and conditions when signing up and disclosing personal information on the internet is simply because there is no option to change those terms..To assert that people who voluntarily sign up to Aadhar, as they do to various agreements on the internet, consent to lose their privacy by allowing their personal data to be electronically stored and accessed, is an oversimplification of the issue..An April fool’s joke in 2010 by the British firm Game Station made the point when 7,500 people agreed to sign up to an “immortal soul clause” in an online purchase contract, which allowed the company the right to require the person to surrender his or her soul within 5 working days of a written notification..In fact, Lord Neuberger, the President of the Supreme Court of England & Wales, referred to this example, and equated the loss of privacy on the internet as common law’s unprecedented challenge because it was the terra incognita and “the biggest experiment in anarchy”. He cautioned that,.“[c]ommunications are potentially subject to far more extensive scrutiny by government bodies, and indeed by companies, individuals and non-government entities, in circumstances quite unlike familiar categories of surveillance such as wire-tapping. The result is a legal environment which has the potential to be at once dangerously insecure and dangerously illiberal.”.Aadhar, if fully implemented, is expected to transform the way an Indian citizen interacts with governmental agencies. At the same time, it is supposed to assist in national security. Both these objectives are laudable..However, the aggregation of personal information without adequate safeguards to protect it, and without a mechanism to take a governmental agency to task for any misuse, is a derogation from a person’s right to privacy, whether it be classified as a fundamental right or not..As the famed 1890 Warren and Brandeis paper “The Right to Privacy” states “[t]he principle which protects…all other personal productions…is in reality not the principle of private property, but that of an inviolate personality.” .It is protecting an individual’s “inviolate personality” which will result in adhering to the rule of law..Nakul Dewan is an advocate who practices before the Supreme Court of India, and also before the Courts in Singapore, and England & Wales. He is a tenant at 20, Essex Street Chambers.