The Right To Privacy in The Era of Smart Governance: Concerns Raised by The Introduction of Biometric-Enabled National Id Cards in India

THE RIGHT TO PRIVACY IN THE ERA OF SMART GOVERNANCE:
CONCERNS RAISED BY THE INTRODUCTION OF BIOMETRIC-ENABLED

NATIONAL ID CARDS IN INDIA
WHILE THE right to privacy has many dimensions, the main concerns of the
author in this paper are the right to privacy of personal data and right to territorial
privacy.
In the 1890s, Louis Brandeis J articulated a concept of privacy that argued that it
was the individual’s right to be let alone.
Griswold v. Connecticut1 was one of the earliest privacy cases before the US
Supreme Court involving a challenge to the constitutionality of a state law
forbidding the use of contraceptives. In this historic case, the court found that even
if the right to privacy is not expressly mentioned in the Constitution, it emanates
from the Fourth Amendment’s ban on unreasonable searches,21 as well as the
protections under the First, Third, Fifth and Ninth Amendments.
Tracing the contours of the right to privacy in India

In India, there is to date no comprehensive or sectoral privacy legislation, or any
independent oversight agency. Neither does the Constitution of India expressly
recognize the right to privacy.2
The recent push for data protection legislation in India is business-driven. The
National Association of Software and Service Companies (NASSCOM) has been
urging the Indian government to pass a data privacy law for some years now.
In the first case wherein the right to privacy was invoked in the context of search
and seizure,37 the Indian Supreme Court adopted a narrow and formalistic
approach, pointing to the absence of a specific constitutional provision analogous
to the Fourth Amendment of the US Constitution, to protect the right of privacy of
Indians from unlawful searches.
1
381 US 479 (1965). The impugned statute was ultimately struck down by the Court.
2
During the Constituent Assembly debates, K.S. Karimuddin moved an Amendment on the lines of the US
Constitution. However, as B.R. Ambedkar gave it only reserved support, it did not secure the incorporation of the
right to privacy in the Constitution
This disappointing decision was followed nearly a decade later by Kharak Singh v.
State of U.P., 39 wherein the right to privacy was again invoked to challenge
police surveillance of an accused person. In a pedantic fashion, the court held that
as privacy is not a guaranteed fundamental right under the Constitution, an attempt
to ascertain the movements of a person, while it invades his privacy, does not
infringe any fundamental right. On this reasoning, the impugned provisions
empowering police ‘watches’ were upheld.
Finally, in 1975 came a decision with far-reaching constitutional implications. In

Govind v. State of M.P.,40 the Supreme Court again confronted the question of the
constitutional validity of police surveillance, challenged by the petitioner as
violating his right to privacy.
The Supreme Court accepted that the unifying principle underlying the concept of
privacy is the assertion that the fundamental nature of the right is implicit in the
concept of ordered liberty.43 Fortified by recent American decisions,44 the court
laid the basis for the doctrine that a penumbra or zone of privacy is created by the
various guarantees in part III of the Indian Constitution.
In 1997, the Supreme Court held that telephone tapping by the government under
the provisions of the Telegraph Act of 1885, infringes the right to privacy if not
resorted to by just, fair and reasonable procedure.
Section 72 of the Information Technology (IT) Act of 2000,53 which is the sole
provision dealing with the issue, is very narrow in scope. It prescribes a penalty for
breach of privacy of any electronic record, but applies only to offences by
authorities exercising power under the Act, such as adjudicating officers, certifying
authorities, etc.
PROBLEM WITH IDENTIFICATION SYSTEM-
Identity systems often force ‘undesirables’ to register with the government or make
them subject to routine interrogation, harassment and prejudice by officials.3
Ethnic minorities, recent immigrants and socially excluded groups such as the
homeless find themselves unfairly singled-out and disadvantaged.
During the genocide, Rwandan ID cards helped distinguish the Tutsis from the
Hutus, and target persons based on group affiliation. No other factor was more
significant in facilitating the speed and magnitude of the 100 days of mass killing
in Rwanda.4
The implications of Multi-purpose Biometric National ID Cards: Why not to

Have Them
Each biometric is, to a greater or lesser extent:
• universal (it exists in all persons),
• unique (it is distinctive to each person),
• permanent (the element remains permanent over time)
Biometric technologies require the collection of information intrinsic to each
person.
Naturally, the biometric ID project also involves the gathering of vast amounts of
co-relating personal data. Individual habits and behaviour, therefore become
increasingly transparent as people’s actions are monitored through the use of
biometrics.
Biometric schemes are expensive. Therefore, the transcendent rationale for
applying biometric projects for multiple purposes becomes apparent – cost sharing.
These multiple uses would, however, extend well beyond a single organization to
multiple organizations in both the public and private sectors.
The existence of a common identifier could, for e.g., alert an employer to
information about an employee’s doctor visits and potential health problems.
3
The UK High Court addressed this point in 1954 when it outlawed the wartime ID card
4
“Genocide and Group Classification on National ID Cards”, in Watner and McElroy (ed.), National Identification
Systems: Essays in Opposition, 55-69 (2004).
By requiring individuals to be entered into a databank to exist in a legal sense or to
have a bureaucratic identity, biometrics reduce individuals to codes.
By allowing one’s very face to be converted into a digital code that can be checked
at any moment without the need for any consenting action, biometrics will have a
significant effect on interiority.5
Critical Evaluation of the Biometric National ID Card Project Proposed in

India
The Government of India launched this hugely significant project with absolutely
no public consultation involving stakeholders outside the IT and management
industry.
When the UK’s Labour government recently mooted the idea of a national ID card,
it launched a six-month consultation period to discuss its proposal and invite public
comment. In Canada, the government has involved the public and civil society
groups in discussions about an ID card proposal. Democracies are meant to
guarantee a participatory process.
Take for instance the national ID system in Germany:
It contains information like the date and place of birth, height, color of eyes, etc. it
is important to stress that unlike the card proposed by the Indian government, it
does not carry any biometric identifiers. Additionally, the government’s proposal
involves the creation of a central database of citizen data. On the contrary,
information corresponding to that on the German Personalausweis is locally, not
centrally maintained.
The introduction of the cards will legitimize a huge invasion of privacy. Not only
will the state have control over vast amounts of personal data, those who do not get
the cards (perhaps because they are immigrants or refugees – the Bangladeshi
rickshaw puller or the Nepali gorkha) will now have to face considerable police
harassment at day-to-day levels because they will not be able to produce their cards
when they are stopped on the streets.
*How to include International Obligations in Orals*
5
Dasgupta, supra note 82 at 295-96.
India’s international treaty commitments – for example, under the Universal
Declaration of Human Rights (UDHR), the International Covenant on Civil and
Political Rights (ICCPR) – oblige the government to protect and guarantee the
right to privacy. The UDHR contains the modern privacy benchmark at an
international level. Article 12 specifically protects territorial and communications
privacy. It states: “No one should be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks on his honor or reputation.
Everyone has the right to the protection of the law against such interferences or
attacks.” Numerous other international human rights treaties, some of which India
is a party to, also specifically recognize privacy as a right.
The Supreme Court’s privacy jurisprudence is still evolving, but the importance of
protecting the individual from official surveillance is unequivocally established.
Any identity scheme that puts in place a mass surveillance apparatus impairing
individual autonomy and self-development would manifestly run contrary to the
essence of the constitutional protection of the right to privacy.

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THE RIGHT TO PRIVACY IN THE ERA OF SMART GOVERNANCE:

CONCERNS RAISED BY THE INTRODUCTION OF BIOMETRIC-ENABLED

Tracing the contours of the right to privacy in India

Finally, in 1975 came a decision with far-reaching constitutional implications. In

The implications of Multi-purpose Biometric National ID Cards: Why not to

Critical Evaluation of the Biometric National ID Card Project Proposed in

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