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Embracing the Positive Obligation of Privacy


By Ashit Kumar Srivastava

Just as any other fundamental right, right to privacy finds itself in the shades of civil and political rights, under the aegis of right to life nourished by the caring hands of the Indian Judiciary giving an extra leverage to the individual liberty against the tentacles of the State. However, interestingly, privacy, like any other fundamental right, should have come under the same bottle, that is being a negative right. Essentially,  negative rights are those under which the State is obligated not to interfere in the sphere of right of the individual citizen. For example, freedom of speech and expression, freedom of movement, right to sleep and other rights coming under Part III of the constitution (with the notable exception of Article 21-A. This is based on the logic that these rights are independent in their existence without any kind of support of State, and so the only task that the State could have in maintenance of these rights is by staying away from them.   

It is on the same premises of reasoning that lies the castle of privacy, vigilantly guarded by the knights of article 21, 19 and 14. However, unlike other Fundamental Rights, the right to privacy in India demands a much bigger role to play against what has been allotted to it. Knowing this, the Union government took out the scheme of Aadhar, which eventually became the reason for genesis of right to privacy, the government has come to realise that undertaking the task of Aadhar and keeping Privacy rights simultaneously is not an easy task. As privacy rights have been recognized as fundamental right, The Union Government is trying every legislative jugglery to make sure that informational data handed over by the citizen, on the pretext of its safety, to the UIDAI is safe and sound, away from any third party.

The insecurities with regards to the fallacy of the Aadhaar Act application is well portrayed in the SriKrishna Committee Report, where in  tacitly acknowledges the shortcomings of the applications of Aadhar provisions and assertively affirms that informational data of the Aadhar applicant is blatantly shared by UIDAI with SRDH. However sharing doesn’t stops here; the enrolling operators are also using the applicant’s personal information for duplicating the Aadhar card. Additionally, the software generated for collection of data for Aadhar and processing of it was designed by a U.S corporation and under this light, it became very hard for the Union Government to claim that the data stored with UIDAI is impenetrable. In order to secure the validity of Aadhar scheme, the SriKrishna Committee report has suggested a  slew of measures which should be undertaken by the Union government so that the Aadhar act can stay viable under the shadow of privacy right.

To conclude, it is logical that the Union Government is taking every positive action to ensure that the private information shared by the citizens with it under the UIDAI scheme is secure; in a way it has become the protector of the same right which it dreaded to infringe upon. If we subtract the scheme of Aadhar itself from the history, the prudent question to be dealt upon here will be whether the Union Government would have taken these steps to protect privacy rights of the Individual. It is somewhere due to the self-undertaken mess of Aadhar and its fallacy at the grass root level, that has forced the State to undertake the task of protecting the rights of privacy by consolidating the application of Aadhar itself. In short taking a positive obligation to protect a negative right, under page 8 of the report, the idea of ‘Data Fiduciary’ (Union Government/Private Corporation) has been quoted as someone who has been entrusted with duty of safeguarding the data given to it by the ‘Data Principal’ (Aadhar Applicant). Under this quasi-contractual reasoning it becomes the duty of the Union government to safeguard the data given to it. 

Ashit Kumar Srivastava (AKS) is an Assistant Professor of Law (Teaching Constitutional Law) at National Law University, Odisha. 

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