“The State can exercise control over your body. Right to body is not absolute.”
– Attorney General Mukul Rohatgi
The Supreme Court hearing of two petitions challenging the constitutional validity of the Aadhaar card in light of Section 139AA of the Income Tax Act where the PAN is being linked to the Aadhaar, brought with it a spate of riveting arguments that shake the foundations of our understanding of privacy and bodily integrity. Apparently, we missed the memo – we no longer have rights over our own bodies.
Shyam Divan, counsel for the petitioners, argued that the concept of Eminent Domain of the State extended only to property, land among others and cannot be extended over the body of individuals. Eminent Domain contends that it is within the power of the sovereign to take property for public use without the owner’s consent. It was also submitted that the state was at best a trustee and cannot compel an individual to part with property. It is pertinent to note here in flashing letters that the body of an individual is not the property of the state that is subject to the same treatment as is immovable/movable property.
Given that women have been subject to millennia of struggles to claim control over themselves, raise their voices for themselves, and be recognised as equal individuals in a society; the government’s behaviour in flippantly side-tracking rights that have been claimed with difficulty is two steps backwards from progress.
A few clarifications are in order before embarking upon the case:
- For starters, the newly inserted section in the IT act makes it compulsory to link Aadhaar numbers with PAN cards, in applying for PAN, and in filing of income tax returns. This is in stark contrast to the voluntary nature of acquiring an Aadhaar card, as enshrined in the Aadhaar (Targeted Delivery Of Financial Aid And Other Subsidies, Benefits & Services) Act 2016.
- The move is in direct conflict with the Supreme Court order stating that it cannot be made mandatory to avail welfare schemes.
- Biometric data according to the IT Act and Rules is defined as “the technologies that measure and analyse human body characteristics, such as ‘fingerprints’, ‘eye retinas and irises’, ‘hand measurements’ “facial patterns’, ‘voice patterns’, and ‘DNA’ for authentication purposes”
- Private enterprises known as enrollment agencies will collect and store the biometric data required by Aadhaar until handed over to the UIDAI Central ID Repository (CIDR) [currently managed on a 7 year contract by HCL Infosystems].
- Government departments/ministries known as registrars in each state engage with these enrollment agencies on a contractual basis.
- The Aadhaar Act and Rules don’t specify the limit to which the enrollment agencies can collect data. There is no limit on the seeding of such data (usage) by third parties if they have not obtained it via UIDAI.
A melange of tweets with the tag #MyBodyMyRights flooded the gates, opening up a much needed conversation in the stifled discourse around privacy. An intimate aspect of our physical identities is tied with our personal physical information. To bandwagon a person into submitting such information without having made an informed choice in the matter is a gross violation of the rights that have been vested in by the Constitution, in Articles 19 and 21.
People are being forced to avail an Aadhaar card to access public resources, and are at risk of facing punitive and exclusionary measures for choosing not to have one. This compels a person to have to make the choice between their personal bodily integrity vs. the governmental schemes that would serve to their benefit. Since when did this choice have to be mutually exclusive?
Consent is an important aspect of this: to be forced to give your fingerprints and iris scans can only be construed as intrusive. It requires enthusiastic and explicit consent for its storage, usage, and disposal. Inherently being a part of the body, the ability to regulate its exposure and usage must be well within one’s means.
The Aadhaar Act does not require an individual’s consent before third parties use the Aadhaar number to collate records (eg. sim card purchases, bank accounts, among others). Besides, a personal aspect of someone is of their own determination, it is not for the State to decide what parts of our bodies become the matter of public scrutiny.
“There is no absolute right over the body. If such a right existed then committing suicide would have been permitted and people would have been allowed to do whatever they wanted with their bodies. The right not to have bodily intrusion is not absolute, and the life of a person can also be taken away by following a due procedure of law. People cannot commit suicide and take drugs,” said the Attorney General.
These statements beg to question the elephant in the room here: it is the mandate of the State to protect & prevent individuals from inflicting harm on themselves. However, measuring your breath for alcohol content, preventing the usage of drugs and the likes do not demand a permanent disclosure of personal information that must be under the control of the individual.
Furthermore, these are mechanisms put in place to prevent a harm to the public through disruptive behaviour and only involved indirectly regulating how a person engages with one’s body. They do not directly curtail control over oneself and the restrict the agency involved in making decisions regarding one’s own body. In all those situations, a person is still choosing to enter the situation requiring such a setup whereas here, the matter of choice has been withdrawn.
Targeted surveillance when necessary versus mandatory mass surveillance have two very different connotations. The former allows for the State to collect DNA samples to further along criminal proceedings, whereas the latter creates a bank of sensitive information at the disposal of an all powerful authority.
The conundrum accompanying the isolation of the right to privacy from that of bodily integrity is that it serves as a monolithic approach to this multifaceted right. Bodily integrity isn’t a mere consequence or “privacy harm” emanating from infringement, but is one of the many faces of privacy that must be addressed. To isolate it from privacy would be to approach it as a mere side-effect instead of multiple distinctive rights. Encompassing bodily integrity, autonomy, and informational self-determination within/as a part of the right to privacy paves the way to address these harms and read them into the constitution as a whole.
The Attorney General also remarked that since the government was already regulating abortions and collecting fingerprints from criminals, there was no absolute authority over one’s own body to begin with. Undermining individual freedom is somehow used here as a justification to further undermine freedoms.
Women’s rights activists have been fighting for bodily integrity and autonomy for decades now. Apart from having the right to continue or terminate a pregnancy, bodily integrity includes all aspects like right to public places, right to a life free from violence, reproductive rights to make decisions about their bodies, contraception, spacing of children among others.
Right to abortion is not an exception but rather a part of the larger continuum of demanding reproductive justice for women. #MyBodyMyRights cannot mean different things for different movements. The core principle remains the same.
While it has been argued that the information collated will be used to prevent fake identification (and all harms arising therefrom), there is a vast meta-data repository that is being amalgamated by the government, through third party agencies. A report released by the Centre for Internet and Society exposes a plethora of instances (especially regarding financial and banking information including bank account numbers, payment details etc.) where Aadhaar numbers and other Personally Identifiable Information has been made public through various government websites.
The assurance of privacy of data hereby stands negated through this brazen display of disregard for sensitive information. The paternalistic right of the State to step over the rights of individuals becomes glaringly obvious when claims of bodily intrusion while taking biometric data as “bogus“. The sort of power being amassed by the government only serves to threaten the rights of persons if left unregulated and unchecked.
While core biometric data (iris, fingerprints) cannot be stored, shared, or published by the requesting entity (banks, governmental schemes, internet service providers or the IT department), it is unclear whether logs and archives can/will be maintained.
While it is a whole bigger debate the extent of this incursion, be it linkages to financial statements, purchases, bank accounts, or enrolment in government schemes; the question of bodily integrity is one that is intrinsic to our rights and one that must be feverishly protected. The mischief that the State is trying to prevent here as opposed to the mischief the State itself is complicit in pose a singular threat of accountability and transparency: Who Will Watch The Watchmen? Women are already subject to policing both by the State and the society with regards to their access to public spaces, knowledge, education, marriage, sexuality (the list goes on) and now there is a new method to undermine their bodily integrity.
It is fitting to end with a terrifying and thought provoking quote by Mr. Rohatgi that will have you in splits about how you feel under constant 1984-like black screens: “Even if you want to be forgotten, the state is not willing to forget you“.
With inputs from Anubha Singh of CREA.