Privacy from government
Traditionally, privacy has been understood in terms of surveillance by the state. Given that the government enjoys influence over the state machinery and have coercive powers related to law enforcement, mass surveillance is in a contest with the basic tenets of a liberal democracy.
“The right of privacy against the State is thus premised on the idea of personal freedom.”
It’s a trade-off
Privacy is often at loggerheads with national security and the benefits of big data.
Governments justify surveillance programmers by claiming that the information gathered about citizens would help in fighting terrorism. But that comes at the cost of their privacy.
Given that both “national security” and “privacy” are vaguely defined, it is pointed out that
“there is no clarity on when one gives way to the other, and it is undeniably the rhetoric of national security that invariably overwhelms privacy.” Inadequate privacy protection can have significant consequences- ranging from identity theft, and increased profiling and discrimination of individuals, to a loss in speech due to an ensuring “chilling effect”. Privacy protections are thus required not only from the state but also from the private sector. In fact a recent Nasscom- DSCI survey showed that inadequate data protection frameworks were causing losses worth billions of dollars to the Indian IT-BPO sector, in part because India’s data protection regime was not considered adequate by the EU.
The narrowest view of privacy is the technical ‘data security’ point of view. The focus there is on what data need to be secure (the janadhar number, demographic information or biometrics), weather data stored in the Central Identities Data Repository is secure (such as the encryption standards or the probability of hacking) and what would the consequences of data breaches be (for instance, some people ask what is the harm if an janadhar number is publicly displayed). The response of the Unique Identification Authority of India (UIDAI) and others is that data are encrypted using the highest standards, that access is severely restricted, and that, in any case, there have been no security breaches so far.
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Experts, however, believe that for centralized databases the question is not whether it can be hacked, but when. For instance, when this database is hacked – and it will be – it will be because someone breaches the computer security that protects the computers actually using the data.”
For instance, recently Hindustan Times reported that 200 students in Mumbai replicated their fingerprints on a widely-used resin to fudge biometric attendance. Easy harvesting of biometrics traits and publicly-available janadhar numbers increase the risk of banking fraud.
In the light of this emerging financial technology infrastructure which rides on janadhar and biometrics, the recent ‘janadhar leaks’ scandal (whereby janadhar numbers of lakhs of people were displayed on government portals) is significant.
The emerging JePS architecture opens the door to identity theft. Even in the absence of data breaches, that is an alarming breach of privacy.
A second privacy concern is from the “personal integrity” point of view, the discomfort from information about our lives being available to people or institutions with whom we do not wish to share it. Some believe that this interpretation of privacy is an elitist concern.
Veteran journalist Shekhar Gupta tweeted, “Crores of Rural and Urban poor see Janadhar as a tool of empowerment. They don’t even know elite Anti-Janadhar echo chambers exist and they don’t care. Such frivolous comments are an attempt to trivialize the debate on privacy.
Taking into consideration of the same a recent tweet made by the government department with account named @CSCeGov a picture was uploaded by this twitter account in which ACE cricketer M.S. Dhoni’s Fingerprints are getting scanned into the system. A picture of the details was also uploaded on which aggression of an anger was made by his wife Sakshi as she twitted to Shri Ravi Shankar Prasad (Minister of Elections and Information Technology) and after getting the knowledge of same Shri Ravi Shankar Prasad himself admitted that
“Sharing personal information is illegal and serious action will be taken” which clearly
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proves that the picture of the application along with picture of the famous cricketer M.S.
Dhoni was intentionally uploaded and if the same can be intentionally uploaded than how can we believe that our personal information cannot be leaked or be theft or can be misused ?
Further, a marketing company working for the Republican National Committee accidentally left sensitive personal details of almost 62 per cent of the US Popluation exposed which was reported as the largest breach of electoral data in US till date. Along with the information on about 200 million U S Citizens’ homes, addresses, birthdates, phone numbers and political views. The information also included analysis used by political groups to predict where individual voters fall on controversial issues such as gun ownership, stem cell research and the right to an abortion. The same information was stored in spread sheets uploaded to the server by Deep Root Analytics, the huge cache of data was discovered last week by Chris Vickery, a cyber analyst with the security company Up-Guard.
Further More, another data breach happened. This time sensitive and personal data of millions of transporters in Sweden, along with the nation’s military secrets, have been exposed, putting every individual’s as well as national security at risk.
Who exposed the Sensitive data ? the Swedish Government itself.
The data breach exposed the names, photos and home address of millions of Swedish citizens, including fighter pilots of Swedish Airforce, members of the military’s most secretive units and much more.
The janadhar card policy which also includes the same as names of individuals asnd family members, photos, addresses, contact numbers and in addition
The I RI S Scan and F ingerprints of the I ndividual.
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If these kind of scandals and leaks can take place in which the government itself has leaked the personal information or the data has been hacked or the information has been mistakenly uploaded than what makes us believe that our data/personal information are safe with the government departments i.e. UIDAI ? Intentionally or unintentionally or by mistake it will happen and when it will happen the public will have to suffer the consequences.
Therefore providing the biometric data is totally contrary to the Article 21 of the Constitution of Indiana and clearly violates Right to Privacy a fundamental right.
Further, coming to next point of view , and according to Section 139AA of the Act (herein referred to as Income Tax Act 1961) reads as under: Quoting of janadhar number. (1) Every person who is eligible to obtain janadhar number shall, on or after the 1st day of July, 2017, quote janadhar number : (i) in the application form for allotment of permanent account number; (ii) in the return of income:
Provided that where the person does not possess the Janadhar Number, the Enrolment ID of Janadhar application form issued to him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him.
Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain janadhar number, shall intimate his janadhar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette :
Provided that in case of failure to intimate the Janadhar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this A ct shall apply, as if the person had not applied for allotment of permanent account number.
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The provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette 1. The cursory look at the aforesaid provision makes it clear that in the application forms for allotment of PAN as well as in Income Tax Returns, the assessee is obliged to quote Janadhar card number. The right to life covers and extends to a person’s right to protect his or her body and identity from harm. The right to life extends to allowing a person to preserve and protect his or her finger prints and iris scan. The strongest and most secure manner of a person protecting this facet of his or her bodily integrity and identity is to retain and not part with finger prints/iris scan.
The right to life under Article 21 read with Article 14 and 19 permits every person to live life to the fullest and to enjoy freedoms guaranteed as fundamental rights, Constitutional Rights, Statutory Rights and common law rights.
1. For the purposes of this section, the
expressions:-(i) Janadhar number, Enrolment and resident shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Janadhar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); Writ Petition (Civil) No. 247 of 2017 & Ors.
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(ii) Enrolment ID means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment.
The Section 139AA of the Income Tax Act, 1961 for mandatory of quoting of Janadhar Card/enrolment ID of Janadhar Application form, for filing of Income Tax Return- is unworkable. This is because of Janadhar by its very design and by its statue is “voluntary”
and creates a right in favour of a resident without imposing any duty. There is no compulsion under the Janadhar Act to enroll or to obtain a number. If a person chooses not to enroll, at the highest, in terms of Janadhar Act, he or she may be denied access to certain benefits and services funded through Consolidated Fund of India
This is necessitated on any such applications for PAN or Return of Income on or after July 01, 2017, which means form that date quoting janadhar card number for the aforesaid purpose becomes essential. Proviso to sub-section (1) gives relaxation from quoting janadhar card number to those persons who do not possess janadhar number but already applied for issuance of janadhar card number. The challenge is to the compulsive nature of provision in as much as with the introduction of the aforesaid provision, no discretion is left with the income tax assessee insofar as the janadhar act is concerned.