This post has been authored by Saara Mehta, a fifth year at the National Law Institute University, Bhopal. It discusses the legality of linking social media accounts to the government’s Aadhar scheme.
On 20thAugust, 2019, the Attorney General of India, K.K. Venugopal, submitted to the Supreme Court that there was a need to link the social media profiles of users with their Aadhar numbers, and if required, have platforms like Facebook and WhatsApp share this number (which acts like a unique identity) with law enforcement agencies to help detect crimes. This, he argued, is needed to check fake news, defamatory articles, anti-national content, etc. This post aims to examine the legality of this potential move in the light of the Puttaswamy decisions, as well as the fundamental rights enshrined in Articles 19 and 21.
To briefly characterise social media, it refers to any interactive technology mediated by a computer, which enables the creation and dissemination of ideas, information, opinions, career interests, and other kinds of expression through virtual communities and networks. Almost every brand, educational institution and government has a social media presence today, and this facilitates direct, one-on-one communication with users.
The Supreme Court, in the Puttaswamy v. Union of India case of 2017 [2017 (10) SCALE 1], declared the right to privacy as a fundamental right under Article 21 of the Constitution. This was unanimously held by a 9-judge bench, which overruled previous decisions that had held the right to privacy as outside the scope of Part III of the Constitution.
This case arose as a challenge to the Aadhar framework, a biometric-based scheme, which the government wished to make compulsory, if a person sought government benefits and services. The case was based on the assertion by Puttaswamy that the right to privacy is violated through the Aadhar scheme. The Attorney General argued, however, that the right to privacy is not a fundamental right in India, citing Kharak Singh v. Uttar Pradesh and M.P. Sharma v. Satish Chandra. A Constitutional bench was set up to decide the privacy question for good.
The bench unanimously overruled Kharak Singh and M.P. Sharma to the extent that they are inconsistent with the present judgment – and held that the right to privacy was a fundamental right under Article 21. The court noted that the right to bodily integrity, autonomy over personal decisions, and protection of personal information – all fall within the right to privacy. At the same time, the court also noted that this right was not absolute – it permitted exceptions, should there be a legitimate aim of the state, and the invasion of privacy was proportional to the object sought to be achieved.
In a 2018 petition by Puttaswamy himself [2018 (4) SCALE 541], the constitutional validity of the Aadhar framework (under the Aadhar Act, 2016) again came into question. The majority opinion held that the Act was legal and intra vires the Constitution in all but some respects. However, it was clarified that only those benefits and services that were in the nature of a ‘subsidy’ or a ‘government welfare scheme’ could require linking of Aadhar. Institutions like CBSE, NEET, JEE, UGC etc. could not be permitted to make Aadhar linking mandatory, since their services do not qualify as a subsidy or government scheme.
It was observed that the Aadhar issue presented a point of intersection between two fundamental rights under Article 21 – the right to personal autonomy and privacy, and the right to live with dignity. Human dignity has three elements – Intrinsic Value, Autonomy and Community Value – and these are to be looked at by the court in ‘hard cases’. The balancing of both the above rights is important and this function lies with the courts. The excessive infringement into personal autonomy for ensuring socio-economic dignity of the community cannot be permitted.
There is a strong case against the proposed linking of social media accounts with the Aadhar scheme. In the 2017 Puttaswamy decision, the test laid down to determine the legitimacy of any invasion of privacy was that first, there must be a legitimate aim of the state justifying the invasion of privacy, and second, the infringement must be proportional to the aim of the statute. The first part of the test can readily be justified, considering that the curbing of fake news, defamatory content, etc. does come across as a legitimate goal of the State. However, the proportionality of this measure cannot easily be understood or justified, as the linking of social media accounts to Aadhar would necessarily involve a highly intrusive presence of the state in our daily lives, and make it difficult for people to express their opinions without concerns of incarceration. This is because with Aadhar details linked to the social media profile, any sort of disaffection with the government of the day, expressed on social media, can be traced back to the individual making such a statement, and liable to be persecuted. Such a constant presence of the state in the lives of individuals can only be justified in a totalitarian state.
Also, under the 2018 Puttaswamy decision, the Aadhar ecosystem cannot be linked to social media services. It was clearly laid down here that only services in the nature of a subsidy or a government welfare scheme can be linked, and social media falls in neither of these categories. Therefore, the linking of Aadhar numbers to social media accounts would be in violation of the court’s ruling.
A notable point is the precarious situation that such a linking would create for the right to freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution, in light of the recent amendments to the Unlawful Activities (Prevention) Act, which received presidential assent on August 8, 2019. Now any individual believed by the government to have committed or participated in acts of terrorism, prepared for terrorism, promoted terrorism, or to have been otherwise involved in terrorism, can be declared a terrorist, and put into custody without being charged of any offence. Additionally, this amendment puts the burden of proof on the person so declared to show that he or she is not a terrorist. This amendment, coupled with the linking of social media profiles to Aadhar, will create a draconian situation wherein a person’s posts on social media can directly result in them being put into custody for indefinite periods of time, and this cannot be remedied in cases where the person may be proved to be innocent later. This will effectively make the right under Article 19(1)(a) illusory and cosmetic.
This move would bolster the already-rampant use of the unconstitutional section 66A of the Information Technology Act. In the case of Shreya Singhal v. Union of India [(2015) 5 SCC 1] it was held that this section – which prohibited the dissemination of information with the intention to cause annoyance, inconvenience or insult – was violative of Articles 19 and 21 of the Indian Constitution, and repugnant retrospectively, since its insertion in 2009. However, a working paper of the Internet Freedom Foundation shows that even today, incomplete prosecutions under this section have not been terminated, and police across India still include it in FIRs. Linking of social media accounts to Aadhar would increase the incidence of such use of section 66A as tracing content and information back to individuals would become easier and more persons could be charged with this section.
The proposed move would be completely unconstitutional, and a blot on the rights to privacy, free speech and expression, and a life of dignity. It is essential that social media be a ‘free’ platform, where individuals can speak their minds without the fear of being incarcerated for it. The growing popularity of social media has made millions of Indians its regular users, and a lot of people’s daily communication with each other takes place through social media. Social media being policed in the proposed manner would create a draconian atmosphere and go far beyond the intended purpose of checking fake news, pornography, seditious material, etc. It would further bolster the culture of repression that exists within our country and also potentially result in many individuals being detained and tried in gross violation of their right to life.