In this modern age, information is power. And allowing the government to exercise this power over us is not only a grave breach of our privacy but also a betrayal of the idea on which this nation stands on i.e, free and democratic. And this project by the government doesn’t allow us to be free and democratic as it stands as an obstacle for us to enjoy the right to privacy which means having control over your own personal data and the ability to grant or deny access to others. Even though many might argue that, the right of privacy is nowhere specified under the constitution as a fundamental right, but it has been declared by the SC as implied to the Fundamental Right to Life and Personal Liberty. (Govind v. State of MP SC, 1975)
Apart from the threat of mass surveillance through the AADHAR Scheme, one of the major concerns is the issue of confidentiality of the database. And the same was mentioned in the case of K.S. Puttaswamy (Retd) vs Union of India (SC, 2017). In this case, a PIL was filed against the government in the SC. It was contended that the government was storing all the acquired data in a centralized database without any proper safety measures any private entity can use that data. And it was also contended that the govt. was implementing this project without any legislative backing. It was pointed out that the NIAI Bill, 2010 which introduced in the Rajya Sabha was still pending. That since UIDAI was running on only an executive order, it cannot collect biometric data of citizens as it would be a violation of privacy under Article 21 of the Constitution.
The Supreme Court overruled verdicts given in the M.P. Sharma v. Union of India (SC, 1954) case and the Kharak Singh (SC, 1963) case, both of which said that the right to privacy is not protected under the Indian constitution. And held that all citizens enjoy a fundamental right to privacy, a right that is protected under Article 21 of the constitution.
In 2019, the Bombay High Court (High Court) was given the opportunity to rule on the law of phone tapping and surveillance in the post-Puttaswamy era, applying the principles of the right to privacy to section 5(2) of the Information Technology Act. In Vinit Kumar (Writ Petition 2367/2019) case, a businessman accused of paying bribes to bank staff in order to obtain credit, and challenged certain CBI orders directing the interception of his phone calls, claiming that such orders were ultra-vires of section 5(2) of the IT Act. The Court ruled that intercepting the businessman’s communications was unlawful, overturned the orders, and ordered that any information gathered through the surveillance be destroyed. This case is important in ensuring that fundamental rights are protected and that authorities do not abuse the authority of phone surveillance to target individual people for economic crimes or to evade legal procedures. In the time we live in, it appears that the judgment given in Puttaswamy case will be tested again and again.
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