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SUPREME CONTEST

An epic battle has been won in the fight for privacy in India, but the war isn’t over

By Devjyot Ghoshal

On Feb. 15, Mukesh Ambani sat on stage at a leadership summit in Mumbai and declared: “To my mind, data is the new natural resource.”

“Data in its raw form is useful, but for it to have real value, it has to be processed into intelligence,” added Ambani, chairman of Reliance Industries and India’s richest man. “And we are really at the beginning of that era where data is really the new oil.”

A few minutes on, the billionaire revealed that his new 4G mobile service, Reliance Jio, had acquired 100 million subscribers since its launch in September 2016. Such prolific growth had been supported, in part, by Jio’s use of online authentication based on Aadhaar, India’s 12-digit unique identification number. ”Aadhaar enabled us to acquire a million customers a day,” Ambani said, “which is unheard of in the industry as a whole.”

Five months later, in July, the personal data of over 100 million Jio customers purportedly appeared on a website. The company steadfastly denied the veracity of the leaked data, though it eventually filed a police complaint alleging “unlawful access to its systems.”

For years, critics of Aadhaar had been warning of such a nightmare scenario. They had argued that the relentless expansion of the biometric-based ID platform, and its linking with other databases, could lead to damaging data breaches. Before the Jio episode, for instance, a stream of government websites had been leaking Aadhaar data.

But much before it had even got to this point, a retired judge of the Karnataka high court had challenged the Aadhaar project. In 2012, KS Puttaswamy, now a frail but sharp nonagenarian, petitioned the supreme court of India that Aadhaar violates an individual’s right to privacy. As concerns over the programme mounted, nearly two dozen other petitions, all countering Aadhaar on various grounds, became attached with Puttaswamy’s original challenge.

In its defence, the Narendra Modi government’s stand was simple: There is no fundamental right to privacy under the Indian constitution.

On Aug. 24, a nine-judge bench of the supreme court admonished that retort, unanimously asserting that privacy is, indeed, a fundamental right, protected as an intrinsic part of the right to life and personal liberty by the constitution. The ruling pulled the rug from under the feet of a government that was furiously expanding Aadhaar, and emboldened a motley group of campaigners fighting for a long time to put a leash on the biometric project.

“This is the second-most important ruling in Indian constitutional history after Kesavananda Bharati (vs. state of Kerala),” said supreme court senior advocate Sanjay Hegde, referring to the 1973 judgement on the power of parliament to amend the Indian constitution. “This (verdict) is far-reaching.”

However, the fate of Aadhaar itself is yet to be decided, by another bench, at another time.

“Look, this is a priority”

On the afternoon of April 28, Shyam Divan stood before two judges, seated in stately high-back, deep-red chairs, at courtroom number eight of India’s supreme court. Tall, with a crop of salt-and-pepper hair, the senior advocate cut an imposing figure, fervently arguing against the Modi government’s decision to make Aadhaar compulsory for filing tax returns. “…the individual decides about their data. Not the government and not the data banks,” Divan posited on behalf of the petitioners, retired Major General Sudhir Vombatkere and Dalit activist Bezwada Wilson. It was another masterful performance in what would become a string of spectacular appearances over the summer. But it didn’t always look like Divan was winning the battle. In this specific case, the court broadly upheld the government’s decision to make linking of the Permanent Account N​umber (PAN) with Aadhaar mandatory.

There was, however, a larger cause for frustration. The supreme court wasn’t settling the matter of privacy as a fundamental right, which a five-judge bench of the court had deemed necessary to resolve way back in August 2015 (pdf), before looking at Aadhaar’s implementation. That was because the government had argued that two previous rulings of the supreme court—by eight- and six-judge benches, respectively—had rendered doubtful the existence of a fundamental right to privacy. So, a bench of more than eight judges was now required to rule on the matter.

The same August 2015 order (pdf) had also restrained the government from expanding Aadhaar beyond public distribution systems (PDS) for food grains and cooking fuel, aside from insisting that “the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.”

Yet, the Modi government kept pushing Aadhaar into more and more schemes, including mid-day meals for school children. When cornered in court, its arguments were sometimes startling. In the Aadhaar-PAN case, for example, the then attorney general Mukul Rohatgi contended that citizens’ absolute right over their bodies was a false belief. “The concept of absolute right over one’s body was a myth and there were various laws which put restrictions on such a right,” the government’s most senior lawyer said.

In early May, at a public discussion on Aadhaar, Divan’s sense of disgruntlement was palpable:

So we had chief justice (HL) Dattu who passed an order in October of 2015 saying that this is a very high priority case. (He) didn’t assign it to an adequately strong bench for his term. Then, we had a year-long tenure of chief justice (TS) Thakur, he didn’t do it. And now, it’s not likely that chief justice (JS) Khehar, until August or September, when he retires, is likely to do it either.

So there’s really nothing we can do in terms of expediting it, except going up before the chief justice and requesting him that, “Look, this is a priority.”

Middle-class musings

Outside the courtroom, outrage was slowly building.

The initial trigger, according to Usha Ramanathan, an independent law researcher who has steadfastly opposed Aadhaar, was the government’s stance to deny privacy as a fundamental right in 2015. But it was a slew of subsequent measures, linking Aadhaar to a number of other government schemes, that really helped galvanise public opinion against it.

“In PDS, it’d been happening for the longest time. But when they put it into the mid-day meal scheme, and said that children won’t get food unless they are on the UID system, unless they’ve put in their number, and they have to authenticate themselves,” said Ramanathan. “That, I think, shook everyone because it’s like, who are you attacking and for what?”

“Around the same time, they also ended up saying, all manner of people—(the) disabled, people with tuberculosis, people who are being rescued from prostitution, people who are being rehabilitated after manual scavenging, people from Bhopal gas disaster,” could not access their benefits without Aadhaar, she added.

The opposition went up another notch after the government decided to make Aadhaar mandatory for filing income tax, exposing the taxpaying, well-heeled sections to the vagaries of the biometric platform. Suddenly, air-conditioned living rooms, hitherto oblivious to the debate raging around Aadhaar, were now at the heart of it.

“The reason why it has picked up so much is because under this government, in the past six-eight months, Aadhaar is coming and knocking at the doors of the urban middle-class and the upper middle-class. When these issues are at their doorstep, when their children are having to go and submit their biometrics, then they’re realising there is something very icky about it,” said Reetika Khera, a development economist who has worked extensively on Aadhaar and its implementation challenges.

“So, what is happening is that the administrative problems that were thus far falling on the poor when they were trying to link their Aadhaar for pension or scholarships, those problems—seeding errors, fingerprint errors—all of those things are now happening with the Twitterati, as they say,” she added.

Meanwhile, the government and other prominent backers of Aadhaar mounted a public defence. Nandan Nilekani, the first chairman of the Unique Identification Authority of India (UIDAI), the agency that runs the Aadhaar platform, pushed back hard against the critics. “The point is that, whether we like it or not, we’re entering a world where there is going to be massive data generation due to a whole lot of technological advances,” Nilekani told Quartz in an interview in April. ”But to say that because of Aadhaar privacy is gone, as if there’s nothing else happening on the planet, is, I think, a bit disingenuous.”

Ajay Bhushan Pandey, chief executive officer of the UIDAI, also insisted that Aadhaar was delivering the goods—even alluding to Reliance Jio’s success—while allaying privacy concerns. In an interview, preceded by a number of Aadhaar-linked data leaks from government websites, Bhushan promised that the UIDAI would take wrongdoers to task. “What we very objectively see is that if there is a violation of the Aadhaar Act, we have to take action and we file a complaint,” he told Quartz. “I am duty-bound under the Aadhaar Act to take appropriate action…and if we feel that prosecution will be a proportionate action, we’ll have to take the action.”

Inside the UIDAI headquarters, there was a quiet sense of confidence. Aadhaar was too big to fail.

Magic number nine

With the main privacy issue still hanging fire, Divan, along with the new attorney general KK Venugopal, made another plea to the supreme court to expedite the matter.

This time, it worked.

On July 12, chief justice Khehar announced that a five-judge bench would decide on the right to privacy eight days later. On July 18, however, the five-judge constitution bench referred the matter to a larger bench, comprising nine judges. After years of delay, the court suddenly seemed determined to settle the matter once and for all.

“If you’re asking me, did I expect the nine-judge thing? No, I did not,” said Ramanathan. “It just came literally… there were five judges, they started hearing the matter. And then they said we’re making it nine and it’s tomorrow. I don’t think anybody could’ve anticipated that.”

It’s not only the anti-Aadhaar lobby that may not have seen it coming. ”The government lawyers did the standard government lawyer trick of trying to kick the can down the road, in the hope that it would be somebody else’s baby at some other point of time,” said Hegde, the supreme court senior advocate.

“Had the attorney general then not boldly asserted that there’s no right to privacy, the matter would not have gone to nine judges,” he added. “By pushing it to nine judges and thinking that nine judges would never be constituted…the government has probably overplayed its hand.”

In the final round, an eloquence of lawyers—including Soli Sorabjee, Gopal Subramaniam, Arvind Datar, Anand Grover, Meenakshi Arora, and Divan—fronted the campaign to rein in Aadhaar. They were backed by a team of more youthful colleagues, some of whom had been religiously live-tweeting hearings for months. This blow-by-blow account of the courtroom sparring provided a rare ringside view to an online public that was suddenly deeply interested in Aadhaar.

“I think all of them saw the seriousness of it,” said Ramanathan. “They are seasoned lawyers, and they were unbelievably good. When people ask what about fees…forget about fees, they wouldn’t even mention a thing like that. They were spending copiously on it. When I say spent, I don’t just mean money. I mean the kind of effort, the kind of research, the kind of work they did…incredible.”

The legal heavy-lifting played its part in ensuring that the government’s case, basically built around denying the right to privacy, was dismissed by the nine-judge bench. In the aftermath of the ruling, however, there was some furious back-peddling. “The government was of the view that right to privacy should be a fundamental right,” law minister Ravi Shankar Prasad said on Twitter, emphasising that the verdict mentioned that the right was subject to reasonable restrictions.

In fact, a government statement circulated later in the day reiterated the point on restrictions. “The judgement reads that personal liberty is not an absolute right but liable to the restrictions provided in the constitution which will be examined on a case-to-case basis,” it noted. ”The government is of the clear opinion that its legislations are compliant with the tests laid down in the judgement.”

The validity of Aadhaar itself is likely to be heard by a three-judge bench of the supreme court, but this latest verdict will empower those already legally challenging the biometric platform. “I suspect that some of the petitioners will be asking for a stay order on the various ways in which…for instance, the SIM card, the bank account, and various things like that…where they (the government) are trying to compel it (Aadhaar) now,” said Ramanathan. “If you reduce the number of places where they can use it, then the government will be interested in having the case heard early.”

An epic battle has been won, but the war is far from over.