University of Miami Law Review University of Miami Law Review
Volume 73
Number 2
Symposium Hack to the Future: How
Technology is Disrupting the Legal Profession
Article 10
2-5-2019
Biometric Identi<cation in India Versus the Right to Privacy: Core Biometric Identi<cation in India Versus the Right to Privacy: Core
Constitutional Features, De<ning Citizens’ Interests, and the Constitutional Features, De<ning Citizens’ Interests, and the
Implications of Biometric Identi<cation in the United States Implications of Biometric Identi<cation in the United States
Madison Julia Levine
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Biometric Identi<cation in India Versus the Right to Privacy: Core Constitutional
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,
73 U. Miami L. Rev. 618 (2019)
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618
Biometric Identification in India Versus
the Right to Privacy: Core Constitutional
Features, Defining Citizens’ Interests,
and the Implications of Biometric
Identification in the United States
MADISON JULIA LEVINE
*
In 2009, the Indian government introduced a widespread
biometric identification system called Aadhaar—a national
scheme that issues Indian citizens and residents a unique
identification number while collecting and storing their most
personal biometric and demographic information. As the
Aadhaar system was implemented and promoted in India,
widespread concerns grew regarding the storage and pro-
tection of such private information. How can Indian citizens
enforce and protect their privacy rights? In 2017, the Indian
Supreme Court attempted to address this issue by holding
that an individual’s right to privacy is an inherent part of the
right to life and personal liberty and is therefore implied un-
der Article 21 of the Indian Constitution.
*
J.D. Candidate 2019, University of Miami School of Law; B.S. 2012, Uni-
versity of Miami. I dedicate this Comment to my late father, Judge Steve Levine,
who is my constant motivation to excel in Law School. I know he is always watch-
ing over me and would be so proud. I want to especially thank my mother, Tracy
Howard, for being an unwavering pillar of strength, support, and guidance. It was
my mom who encouraged me to explore who I am, make mistakes, be spontane-
ous, and embrace the joy of living. She allowed me to travel at a young age and it
was one such travel adventure in Southern India that sparked the idea for this
Comment. I want to thank my uncle, Jon (Tío), who helped me with the writing
process. A big thank you to Frank Halpern who I bounced ideas off of and who
supported and comforted me even during my most stressed out moments. I want
to thank my faculty advisor, Scott Sundby, for being an inspiring professor and
assisting me with the focus and scope of my writing. Finally, thank you to the
University of Miami Law Review for choosing my Comment for publication and
working so diligently throughout the editing process.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 619
Following the Supreme Court of India’s declaration that
privacy is a fundamental right, the idea of a general-purpose
identification database is constitutionally questionable. As
there is no comprehensive legal framework for privacy pro-
tection and no explicit constitutional right to privacy in In-
dia, one must ask: is the Indian government violating indi-
vidual privacy rights through Aadhaar? Regardless of this
concern, in 2018 the Indian Supreme Court declared
Aadhaar constitutional in connection to the mandatory link-
ing of Aadhaar numbers with all government welfare
schemes and services. In light of this decision, this Comment
advocates that the Aadhaar system should have been deemed
unconstitutional as a violation of individual privacy rights.
Additionally, with the growth of interconnected technol-
ogy, it is important to address the consequences of a system
like Aadhaar in the United States. How would a similar iden-
tification system function and would such a system even be
deemed constitutional? To maintain a liberal democratic so-
ciety that values and upholds privacy rights, the United
States should avoid proposing such a system, no matter how
beneficial or convenient it may seem.
INTRODUCTION .......................................................................... 620
I. CORE PRIVACY RIGHTS UNDER THE INDIAN CONSTITUTION .. 621
II. THE UNITED STATES CONSTITUTION AND THE RIGHT TO
PRIVACY.............................................................................. 628
III. INDIA’S AADHAAR SYSTEM: A SPECIFIC PRIVACY ISSUE ....... 634
A. The Aadhaar System .................................................... 634
B. Pros of the Aadhaar System ......................................... 636
C. Cons of the Aadhaar System......................................... 638
IV. CONSTITUTIONALITY OF THE AADHAAR SYSTEM .................. 641
A. The Aadhaar Act 2016 ................................................. 641
B. Information Collection and the Legality of the Aadhaar
Act ............................................................................... 644
C. Biometric Data Collection ........................................... 645
D. Constitutional Challenge Analysis ............................... 646
E. New Legislative Proposals ........................................... 648
V. IMPLICATIONS OF AN AADHAAR-LIKE SYSTEM IN THE
UNITED STATES .................................................................. 649
CONCLUSION ............................................................................. 653
620 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
INTRODUCTION
The right to privacy was characterized in the United States dur-
ing the late nineteenth century simply as the “right to be let alone.”
1
Since then, the right to privacy has expanded into something much
greater due to—among other sociopolitical changes—emerging
technology and information systems, which have wrought a com-
plex set of issues that illuminate the core definitional features of pri-
vacy in the twenty-first century.
2
Alan Westin, a scholar who sur-
veyed and set the boundaries of privacy under the United States
Constitution for a half-century, said that “[p]rivacy is the claim of
individuals, groups, or institutions to determine for themselves
when, how, and to what extent information about them is communi-
cated to others.”
3
In 1989, the United States Supreme Court stated
that privacy is one’s “control over information concerning his or her
person.”
4
Similarly, President Bill Clinton’s National Information
Infrastructure Task Force defined privacy as “an individual's claim
to control the terms under which personal information—information
identifiable to the individual—is acquired, disclosed, and used.”
5
By
any definition today, privacy includes the “ability of an individual
or a group to seclude themselves or information about themselves
and thereby reveal themselves selectively.”
6
Accordingly, the defi-
nition that will be used throughout this Comment to encompass pri-
vacy rights in the modern international system can be stated as fol-
lows: privacy is the right to control the dissemination of personal
1
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L.
REV. 193, 205 (1890).
2
Justice K.S. Puttaswamy (Retd.) v. Union of India (Puttaswamy I), Writ
Petition (Civil) No. 494 of 2012, 1 (Sup. Ct. India Aug. 24, 2017) (describing
issues such as data mining, data collection, algorithms, internet browsing, and
online banking). A subsequent Indian Supreme Court decision was reached in
2018 and is referred to as Puttaswamy II.
3
ALAN WESTIN, PRIVACY AND FREEDOM 7 (1967); see Karen Sparks, Alan
Furman Westin, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com/biog-
raphy/Alan-Westin (last updated Dec. 14, 2018); see also Tabrez Ahmad et al.,
Right of Privacy: Constitutional Issues and Judicial Responses in USA and India,
Particularly in Cyber Age 11 (2009) (unpublished manuscript), https://pa-
pers.ssrn.com/sol3/papers.cfm?abstract_id=1440665.
4
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 763 (1989).
5
Ahmad et al., supra note 3, at 11.
6
Id. at 2.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 621
information.
This Comment addresses two primary questions. First, does In-
dia’s biometric identification system violate constitutional privacy
protection? Second, what are the implications of enacting a similar
system in the United States? There is also the related issue of what
occurs when one cannot control the dissemination of personal infor-
mation. How will our privacy rights be protected and upheld? This
Comment approaches these questions and issues in the context of
India’s Aadhaar scheme—a national identification system that is-
sues Indian citizens and residents a unique ID number while collect-
ing and storing their most personal biometric and demographic in-
formation.
7
This Comment advocates for new, comprehensive privacy pro-
tections under Indian law in light of the 2017 Indian Supreme Court
decision Puttaswamy v. Union of India (Puttaswamy I), which up-
held the right to privacy as fundamental under the Constitution of
India.
8
Part I of this Comment discusses privacy rights under the
Indian Constitution, including previous and current case law ad-
dressing this issue. Part II explores privacy rights under the United
States Constitution and prior jurisprudence that developed this topic,
as well as alternative views on constitutional interpretation. Part III
highlights the specific issues associated with Aadhaar ID cards, in-
cluding the pros and cons of the personal identification system. Part
IV analyzes the constitutionality of current Aadhaar legislation in
India and suggests changes in the law. Finally, Part V explores the
implications and consequences of implementing a similar national
identification system in the United States.
I. CORE PRIVACY RIGHTS UNDER THE INDIAN CONSTITUTION
Fundamental rights such as life, dignity, personal liberty, happi-
ness, and freedom arise out of societal custom and are memorialized
in constitutions and legislation.
9
Such rights have been described as
basic, primordial, or inalienable rights and in modern democratic
7
See infra Part III.
8
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 262–63 (Sup. Ct.
India Aug. 24, 2017; see infra Part I.
9
See Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 23 (Bobde, J.,
concurring).
622 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
countries,
cannot be “abridged or curtailed totally by ordinary legis-
lation” or the acts of elected officials.
10
The framers of the Consti-
tution of India believed that liberty cannot be fully enjoyed without
the guarantee of certain freedoms.
11
The very purpose of creating a
written Indian Constitution was to “secure justice, liberty, and
equality to the people of India.”
12
As such, the Constitution of India contains provisions “specify-
ing and identifying certain rights” for its citizens.
13
In attempting to
understand and solidify these essential rights, it is important to look
to the written text of the Constitution for a deeper understanding.
14
Such freedoms can be found in the words of the Preamble and Part
III (Fundamental Rights) of the Indian Constitution, which includes
Articles 14, 19, and 21.
15
These Articles enumerate a specific and
precise list of rights, including the following: the right to equal pro-
tection,
16
freedom of speech and expression, freedom of move-
ment,
17
life, and personal liberty.
18
Nevertheless, an exact constitu-
tional provision containing a fundamental right of privacy is lacking,
creating a discord of court opinions concerning the privacy rights of
10
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 22–23 (Che-
lameswar, J., concurring).
11
Id. at 24.
12
Id.
13
Id. at 22.
14
See id. at 21.
15
INDIA CONST. pmbl. (“We, the People of India, having solemnly resolved
to constitute India into a sovereign socialist secular democratic republic and to
secure to all its citizens: Justice, social, economic, and political; Liberty of
thought, expression, belief, faith, and worship; Equality of status and opportunity;
and to promote among them all fraternity assuring the dignity of the individual
and the unity and integrity of the Nation.”); id. art. 14 (“The State shall not deny
to any person equality before the law or the equal protection of the laws within
the territory of India.”); id. art. 19 (“All citizens shall have the right to freedom of
speech and expression; to assemble peaceably and without arms; to form associ-
ations or unions or co-operative societies; to move freely through the territory of
India; to reside and settle in any part of the territory of India; and to practice any
profession, or to carry on any occupation, trade or business.”); id. art. 21 (“No
person shall be deprived of his life or personal liberty except according to proce-
dure established by law.”).
16
Id. art. 14.
17
Id. art. 19.
18
Id. art. 21.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 623
Indian citizens.
19
However, on August 24, 2017, the Indian Supreme Court deci-
sion in Puttaswamy v. Union of India (Puttaswamy I)
20
brought
some clarity to the issue of fundamental privacy rights. Prior to Put-
taswamy I, there was a general understanding of an implied right to
privacy in India, but its boundaries remained imprecise.
21
For exam-
ple, the ancient and religious texts of India contained a well-devel-
oped sense of privacy.
22
In the Ramayana (an ancient Indian epic
poem), a woman should not be seen by a male stranger, and the Gri-
hya Sutras (sacred Hindu texts concerning domestic rituals) describe
the correct way to build one’s home to protect privacy.
23
Members
of one particular Hindu denomination, known as the Ramanuj Sam-
pradaya, refuse to eat or drink in the presence of others.
24
Despite
the evident historical emphasis on privacy, the Court in Puttaswamy
I solidified this legal issue by holding that an individual’s right to
privacy is an inherent part of the right to life and personal liberty
and therefore is implied in Article 21 of the Indian Constitution.
25
In the judgment, Justice Chandrachud declared that privacy is an
intrinsic right to life and liberty.
26
This judgment arose as a reaction
to the overarching presence of state and private actors attempting to
regulate individual freedoms.
27
There was a need to address privacy
19
Ujwala Uppaluri & Varsha Shivanagowda, Preserving Constitutive Values
in the Modern Panopticon: The Case for Legislating Toward a Privacy Right in
India, 5 NUJS L. REV. 21, 33, 42–44 (2012).
20
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012.
21
Graham Greenleaf, Confusion as Indian Supreme Court Compromises on
Data Privacy and ID Number, 137 PRIVACY LAWS & BUS. INT’L REP. 24, 24–26
(2015).
22
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 21 (Bobde, J., con-
curring).
23
Id.
24
Id.
25
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 262 (majority opin-
ion) (“Privacy is a constitutionally protected right which emerges primarily from
the guarantee of life and personal liberty in Article 21 of the Constitution.”); INDIA
CONST. art. 21. (stating that “no person shall be deprived of his life or personal
liberty except according to procedure established by law”.)
26
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 262–63; Right to
Privacy a Fundamental Right, Says Supreme Court in Unanimous Verdict, WIRE
(Aug. 24, 2017), https://thewire.in/170303/supreme-court-aadhaar-right-to-pri-
vacy/.
27
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 4–5.
624 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
rights in the context of the changing technological landscape of In-
dia, where the debate on privacy was “being analyzed [within] the
context of a global information based society.”
28
The task before the
Court was to “impart constitutional meaning to individual liberty in
an interconnected world.”
29
As Justice Chelameswar stated in his
concurring opinion, “fundamental rights are the only constitutional
firewall to prevent [state] interference with those core freedoms con-
stituting liberty of a human being.”
30
His concurrence concluded by
emphasizing that the right to privacy is a core freedom and is part of
the meaning of liberty within Article 21.
31
The Puttaswamy I judgment recognized the importance and
value of privacy as a constitutional entitlement, not through the pro-
cess of amendment, but through judicial interpretation by determin-
ing the nature and the extent of the freedoms available to each per-
son protected under the Indian Constitution.
32
The Court looked to
Article 21 to interpret and establish this fundamental right.
33
Justice
Chandrachud explained that the right to privacy is implicit in the
right to life and liberty guaranteed to citizens by Article 21 and that
citizens have a right to safeguard that privacy.
34
Justice Bobde fur-
ther expounded that the original and proper home for a right of pri-
vacy is in Article 21 at the very core of personal liberty and life it-
self.
35
He stated that “[l]iberty and privacy are integrally connected
in a way that privacy is often the basic condition necessary for ex-
ercise of the right of personal liberty.”
36
Earlier in the opinion, Jus-
tice Bobde asserted that an individual must ensure his or her privacy
in order to experience fulfillment and happiness and to perform at
the highest level.
37
The Court also turned to the Preamble of the Indian Constitution
28
Id.
29
Id.
30
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 40 (Chelameswar,
J., concurring).
31
Id. at 40–41.
32
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 109–10 (majority
opinion).
33
Id.
34
Id. at 51–52.
35
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 25 (Bobde, J., con-
curring).
36
Id.
37
See id. at 23.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 625
in interpreting privacy as a fundamental right.
38
In reference to the
Preamble, Chief Justice Khehar explained “the constitutional vi-
sion seeks the realization of justice (social, economic and political);
liberty (of thought, expression, belief, faith, and worship); equality
(as a guarantee against arbitrary treatment of individuals); and fra-
ternity (which assures a life of dignity to every individual).”
39
The
principles enumerated in the Preamble exist cohesively to “facilitate
a humane and compassionate society.”
40
By focusing on human dig-
nity in realizing fundamental individual rights, the “collective well-
being of the community is determined,” ensuring that Indian society
is a reflection of dignity, fairness, liberty, and justice.
41
Chief Justice
Khehar claimed that such reflections are also found in Article 14
(equal protection), Article 19 (guarantees of freedom), and Article
21 (the right to life and personal liberty) of the Constitution.
42
Justice Sapre further explored this concept, stating that the sig-
nificance of the Preamble was to focus on two aspects—first, “the
unity of the Nation” and second, the “dignity of the individual.”
43
Both expressions are interdependent and intertwined in that the Na-
tion is required to respect the freedom and ability to attain self-ful-
fillment of every individual.
44
Dignity of both the individual and the
Nation is considered essential to the fraternity of the Indian people.
45
Justice Sapre found no difficulty in tracing the right to privacy as
emanating from two expressions of the Preamble: “liberty of
thought, expression, belief, faith and worship” and “fraternity assur-
ing the dignity of the individual.”
46
Additionally, he also found that
the right to privacy emanates from Article 19(1)(a), which gives to
every citizen “a freedom of speech and expression,” Article
19(1)(d), which gives to every citizen “a right to move freely
38
INDIA CONST. pmbl.
39
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 94 (majority opin-
ion).
40
Id.
41
Id.
42
INDIA CONST. arts. 14, 19, 21; Puttaswamy I, Writ Petition (Civil) No. 494
of 2012 at 94.
43
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 6 (Sapre, J., con-
curring).
44
Id.
45
Id. at 7.
46
Id. at 19.
626 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
throughout the territory of India,” and finally, from the expression
“personal liberty” under Article 21.
47
The right to privacy is inter-
twined with these expressions and “flows from each of them and in
juxtaposition.”
48
Importantly, the Indian Supreme Court’s decision in Put-
taswamy I overruled the holdings of the 1954 case M.P. Sharma v.
Satish Chandra and the 1962 case Kharak Singh v. State of Uttar
Pradesh, both of which were landmark decisions holding that the
right to privacy is not protected under the Indian Constitution.
49
In
M.P. Sharma, the Indian government seized documents belonging
to a company suspected of falsifying records.
50
Sharma challenged
the constitutional validity of the search and seizure, claiming that it
violated his fundamental rights under Article 19(1)(f), the right to
acquire, hold, and dispose of property, and Article 20(3), protection
against self-incrimination.
51
The Court in M.P. Sharma held that in
the absence of a provision similar to the Fourth Amendment of the
United States Constitution, the right to privacy could not be read
into the provisions of Article 20(3) of the Indian Constitution.
52
Alt-
hough Article 19(1)(f) was also in question, the Court only rejected
the right to privacy in the context of searches and seizures of docu-
ments.
53
The Court took a narrow and formalistic approach, stating
47
Id.
48
Id. at 20.
49
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 261 (majority opin-
ion); M.P. Sharma v. Satish Chandra, District Magistrate, Delhi (1954) 1 SCR
1077, 1096–97 (India); Kharak Singh v. State of U.P., (1964) 1 SCR 332, 351
(India).
50
M.P. Sharma, 1 SCR at 1079–80; Ananthakrishnan G, M P Sharma and
Kharak Singh: The Cases in Which SC Ruled on Privacy, INDIAN EXPRESS (July
19, 2017), http://indianexpress.com/article/explained/m-p-sharma-and-kharak-
singh-the-cases-in-which-sc-ruled-on-privacy-4756964/.
51
M.P. Sharma, 1 SCR at 1080–81 (discussing INDIA CONST. arts. 19, 20).
52
INDIA CONST. art. 20, § 3; Puttaswamy I, Writ Petition (Civil) No. 494 of
2012 at 261; see Gautam Bhatia, State Surveillance and the Right to Privacy in
India: A Constitutional Biography, 26 NAT’L L. SCH. INDIA REV. 127, 130 (2014).
53
See Bhatia, supra note 52, at 128. But see Govind v. State of M.P., (1975)
3 SCR 946, 951–56 (suggesting that there is a zone of privacy that is protected
under the Indian Constitution).
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 627
that India has no equivalent of the American Fourth Amendment’s
specific prohibition of unlawful searches.
54
The decision in M.P. Sharma did not specifically adjudicate
whether a right to privacy would arise from any other constitutional
provision such as the rights guaranteed by Article 19 or Article 21.
55
The decision only held that a right to privacy cannot be read into the
Indian Constitution under Article 20(3).
56
Accordingly, the holding
could not be interpreted to specifically exclude the protection of pri-
vacy under the framework of constitutional guarantees including
those in Articles 19 or 21.
57
M.P. Sharma left undetermined whether
a constitutional right to privacy is protected by other provisions of
the Indian Constitution, leaving room for future judicial interpreta-
tion.
58
Therefore, in the absence of an express constitutional guar-
antee of privacy, the Court could still consider whether privacy is an
element of personal liberty, a part of human dignity, or understood
within the protection of human life.
59
In Kharak Singh, the petitioner challenged the constitutionality
of police monitoring.
60
After being released from custody for lack
of evidence, the petitioner was placed under police surveillance,
which included unannounced home visits, movement reports, and
periodic inquiries into his communications.
61
Singh challenged the
constitutionality of the surveillance, claiming that it violated his fun-
damental rights of freedom of movement under Article 19(1)(d) and
the protection of life an personal liberty under Article 21.
62
The
Court held that the content of the expression “life and personal lib-
erty” under Article 21 is a guarantee against intrusion into personal
54
Bhatia, supra note 52, at 128; Sheetal Asrani-Dann, The Right to Privacy
in the Era of Smart Governance: Concerns Raised by the Introduction of Bio-
metric-Enabled National ID Cards in India, 47 J. INDIAN L. INST. 53, 62 (2005).
55
INDIA CONST. art. 19 (protecting freedom of speech and expression, the
ability to move freely through the territory of India, and to practice any profession,
or to carry on any occupation, trade or business); Puttaswamy I, Writ Petition
(Civil) No. 494 of 2012 at 262 (majority opinion).
56
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 262.
57
Id.
58
Id.
59
Id.
60
Kharak Singh v. State of U.P., (1964) 1 SCR 332, 336 (India); Anantha-
krishnan G, supra note 50.
61
Kharak Singh, 1 SCR at 337–39; Ananthakrishnan G, supra note 50.
62
Kharak Singh, 1 SCR at 336.
628 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
security.
63
The Court further held that unauthorized entrance into a
person’s home is a violation of that fundamental right to personal
liberty.
64
However, the Court refused to accept an infringement of
Article 19, stating that unannounced visits did not impede Singh’s
movements, and therefore did not abridge his personal liberty or pri-
vacy.
65
As such, the second part of the decision in Kharak Singh, which
invalidated home visits on the ground that they violated personal
liberty under Article 21, seems to be an implicit recognition of the
right to privacy.
66
However, the first part of the decision, emphasiz-
ing that the right to privacy is not a guaranteed right under the Indian
Constitution, invalidates the right to privacy as a fundamental free-
dom.
67
The 2017 Supreme Court decision in Puttaswamy I,
68
which di-
rectly addresses whether the right to privacy is a fundamental right
under the Indian Constitution, overrules both M.P. Sharma and Kha-
rak Singh, creating a new stage on which to analyze and adjudicate
privacy issues in India.
II. THE UNITED STATES CONSTITUTION AND THE RIGHT TO PRIVACY
Similar to the Indian Constitution, the United States Constitution
does not contain an explicit right to privacy.
69
However, the devel-
opment of American jurisprudence has revealed that the right to pri-
vacy is implicitly protected under several Amendments to the
United States Constitution.
70
63
Id. at 348–51; Bhatia, supra note 52, at 130.
64
Kharak Singh, 1 SCR at 348–51.
65
Id. at 343–44.
66
Id. at 348–51; Bhatia, supra note 52, at 130.
67
Kharak Singh, 1 SCR at 348–51; see MP Sharma and Kharak Singh’s
Case: ‘Privacy Not a Fundamental Right’ Supreme Court Had Held Decades
Ago, FIRST POST (Aug. 24, 2017), http://www.firstpost.com/india/mp-sharma-and
-kharak-singhs-case-privacy-not-a-fundamental-right-supreme-court-had-held-
decades-ago-3966467.html.
68
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 261 (Sup. Ct. India
Aug. 24, 2017).
69
Id. at 141; Uppaluri & Shivanagowda, supra note 19, at 33.
70
See generally Todd B. Ruback & Sarah Mahony, An Overview of Recent
Statutory Changes to Privacy Law in India in Comparison to Similar US and EU
Privacy Rules, N.J. LAW. MAG., Oct. 2011, at 48, 48; Uppaluri & Shivanagowda,
supra note 19, at 34.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 629
The 1965 case Griswold v. Connecticut was one of the earliest
privacy cases before the United States Supreme Court.
71
Griswold
brought a constitutional challenge of a state law that forbade the use
of contraceptives.
72
The Court found that even though the right to
privacy is not expressly mentioned in the Constitution, it emanates
from the Fourth Amendment’s ban on unreasonable searches.
73
The
Court also held that the right to privacy is protected under the First,
Third, Fifth, and Ninth Amendments.
74
These Amendments create a
zone in which privacy is protected from governmental intrusion.
75
Griswold is similar to the 1975 Indian Supreme Court case of
Govind v. State of M.P.,
76
which also recognized a “penumbra or
zone of privacy” under the Indian Constitution.
77
Govind challenged
the constitutional validity of state surveillance and unannounced
home visits.
78
The Court held that Articles 19 and 21 of the Indian
Constitution created an independent right to privacy and the “funda-
mental nature of [this] right is implicit in the concept of ordered lib-
erty.”
79
Yet, the Indian Supreme Court did not go so far as to spe-
cifically declare privacy an inherent right, as was pronounced in
Puttaswamy I and as the United States Supreme Court pronounced
in Griswold, but did indicate that a fundamental privacy right could
be overridden by a compelling state interest.
80
The 1967 decision in Katz v. United States also broadened the
interpretation of the right to privacy in the United States Constitu-
71
381 U.S. 479, 480 (1965); Uppaluri & Shivanagowda, supra note 19, at 34.
72
Griswold, 381 U.S. at 480.
73
Id. at 484.
74
Id.
75
Id. at 485.
76
(1975) 3 SCR 946 (India).
77
Id. at 947; Asrani-Dann, supra note 54, at 63.
78
Asrani-Dann, supra note 54, at 63.
79
Govind, 3 SCR at 954.
80
See Bhatia, supra note 52, at 134. Govind set the tone for future Indian
Supreme Court decisions. See, e.g., People’s Union for Civil Liberties v. Union
of India, (1997) 1 SCC 301 (holding that improper wiretapping implicates Article
21 of the Indian Constitution, violating personal liberty and the right to privacy).
630 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
tion, with specific emphasis on the Fourth Amendment and govern-
mental intrusion.
81
Previous case law in the area of government sur-
veillance was based on Olmstead v. United States, which interpreted
the Fourth Amendment to apply only to an actual physical examina-
tion of one’s person, papers, tangible effects, or home.
82
However,
as the common law notion of privacy shifted from a physical- and
property-based understanding to a personal liberty understanding,
there was a reexamination and reinterpretation of the Constitution,
specifically Fourth Amendment protections.
83
Katz established the
“reasonable expectation of privacy,” illuminated in Justice Harlan’s
concurrence, which built off Justice Stewart’s majority opinion:
“[T]he Fourth Amendment protects people, not
places.” The question, however, is what protection it
affords to those people. Generally, as here, the an-
swer to that question requires reference to a “place.”
My understanding of the rule that has emerged from
prior decisions is that there is a twofold requirement,
first that a person has exhibited an actual (subjective)
expectation of privacy and, second, that the expecta-
tion be one that society is prepared to recognize as
“reasonable.”
84
Following the Katz decision, the United States Supreme Court
heard a number of cases to determine the extent that state actors may
intrude upon an individual’s privacy under the Fourth Amendment.
In Kyllo v. United States, the Court held that the thermal imaging of
a house is a violation of the Amendment.
85
Writing for the majority,
Justice Scalia stated that the sanctity of the home is always pro-
tected, as was originally intended by the Fourth Amendment.
86
While the decision in Katz may have expanded the understanding of
81
389 U.S. 347, 347 (1967); U.S. CONST. amend. IV (“The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .”).
82
277 U.S. 438, 466 (1928).
83
Asrani-Dann, supra note 54, at 54–55.
84
Katz, 389 U.S. at 516 (Harlan, J., concurring).
85
533 U.S. 27, 40 (2001).
86
Id.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 631
the Fourth Amendment to include a reasonable expectation of pri-
vacy, the majority believed it did not supplant the original intention
of the Amendment—to secure people in their “persons, houses, pa-
pers, and effects, against unreasonable searches and seizures.”
87
In addressing the concerns with government surveillance and
monitoring, the United States Supreme Court, in United States v.
Jones, held that GPS monitoring of a vehicle constituted a search
under the Fourth Amendment.
88
GPS monitoring allows the govern-
ment to create a comprehensive record of a person’s public move-
ments that reflect a great amount of detail about “her familial, polit-
ical, professional, religious, and sexual association.”
89
In her con-
currence, Justice Sotomayor emphasized that “physical intrusion is
now unnecessary to many forms of surveillance” and allowing the
government to track a vehicle’s movements through GPS may “alter
the relationship between citizen and government in a way that is in-
imical to democratic society.”
90
Perhaps most telling of the United States Supreme Court’s view
on surveillance and data gathering in an era of increased technology
is the 2014 case of Riley v. California.
91
There, the Supreme Court
unanimously held that a warrantless search and seizure of digital
contents of a cell phone was unconstitutional.
92
Cell phones contain
much more information than just a record of outgoing and incoming
calls; they contain photographs, video tapes, address books, emails,
bank records, browsing histories, and voicemails.
93
As a result, the
Court believed that allowing state actors to conduct a search of a
person’s entire cell phone would be like “ransacking his house for
everything which may incriminate him” instead of just searching his
pockets.
94
In addition to the Fourth Amendment line of cases defining pri-
vacy, the Court developed the right to privacy in other areas as well;
87
U.S. CONST. amend. IV; see Kyllo, 533 U.S. at 40.
88
565 U.S. 400, 412–13 (2012).
89
Id. at 415 (Sotomayor, J., concurring).
90
Id. at 416.
91
134 S. Ct. 2473 (2014).
92
Id. at 2494–95.
93
Id. at 2489.
94
Id. at 2491 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2d
Cir. 1926)).
632 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
perhaps most controversial is its decision in Roe v. Wade.
95
This
case dealt with the question of abortion and a woman’s liberty under
the Fourteenth and Ninth Amendments.
96
The Fourteenth Amend-
ment prevents the state from depriving any person of life, liberty, or
property without due process of law, while the Ninth Amendment
protects the unenumerated rights of the United States Constitution
(rights that may exist aside from those explicitly mentioned).
97
In
Roe, Justice Blackmun delivered the majority opinion and held that
[t]he Constitution does not explicitly mention any
right of privacy. In a line of decisions, how-
ever, . . . the Court has recognized that a right of per-
sonal privacy, or a guarantee of certain areas or zones
of privacy, does exist under the Constitu-
tion. . . . This right of privacy, whether it be founded
in the Fourteenth Amendment’s concept of personal
liberty and restrictions upon state action, as we feel
it is, or, as the District Court determined, in the Ninth
Amendment's reservation of rights to the people, is
broad enough to encompass a woman’s decision
whether or not to terminate her pregnancy.
98
In Roe, the Court found roots in the Constitution that protect the
right to privacy: the First Amendment, the Bill of Rights, the Ninth
Amendment, and the concept of liberty guaranteed by the Four-
teenth Amendment.
99
This analysis is analogous to the decision in
Puttaswamy I,
100
where Article 21 of the Indian Constitution was
interpreted to include the right to privacy under the right of life and
personal liberty. Although the word “privacy” is not mentioned in
either the Indian or the United States Constitutions, the courts of
both countries have not only recognized the right to privacy under
95
410 U.S. 113, 120 (1973).
96
Id. at 129.
97
U.S. CONST. amends. IX, XIV.
98
Roe, 410 U.S. at 152 (citations omitted).
99
Id. at 152–53; accord Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
100
See generally Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 257
(Sup. Ct. India Aug. 24, 2017).
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 633
various amendments and articles, but they have also extended the
scope of protection under the right to privacy.
101
As demonstrated, constitutions and judicial interpretation evolve
over time as specific issues and entitlements come to the forefront
of the demands for justice.
102
Constitutional developments have oc-
curred as constitutional texts are interpreted to address new concerns
that require an “expansive reading of liberties and freedoms to pre-
serve human rights under the rule of law.”
103
India’s and the United States’s experiences with oppressive re-
gimes
104
is a reminder of how precious the rights to life and liberty
truly are. It is the role of the judiciary to be vigilant in interpreting
the meaning of constitutional text, as constitutions have evolved and
continue to evolve to meet current and future challenges.
105
The
draftsmen of both the Indian and United States Constitutions were
influenced by a sense of history that enriched the development and
adoption of the documents.
106
Further, as seen in previously men-
tioned case law, the concept of fundamental rights, such as the issue
of privacy intertwined with liberty and dignity, has evolved over the
course of constitutional history in both countries.
107
Still, no past generation could possibly foresee the many prob-
lems that contemporary societies face, even with a rich sense of his-
torical understanding of the meaning of life and liberty.
108
There-
fore, constitutions should be interpreted with flexibility instead of
limiting their meanings to the confines of their drafting date.
109
As
Chief Justice Khehar eloquently put it, “above all, constitutional in-
terpretation is but a process in achieving justice, liberty, and dignity
101
See Roe, 410 U.S. at 152; Uppaluri & Shivanagowda, supra note 19, at 33.
102
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 208.
103
Id.
104
See Dr. Chandrika Kaul, From Empire to Independence: The British Raj in
India 1858-1947, BBC, http://www.bbc.co.uk/history/british/modern/independ-
ence1947_01.shtml (last updated Mar., 3, 2011); see also Francis D. Cogliano,
Was the American Revolution Inevitable?, BBC, http://www.bbc.co.uk/history/
british/empire_seapower/american_revolution_01.shtml (last updated Feb. 17,
2011).
105
See Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 208.
106
Id. at 111–12.
107
See Roe v. Wade, 410 U.S. 113, 152–53 (1973); see also Katz v. United
States, 389 U.S. 347, 348 (1967); Bhatia, supra note 52, at 130.
108
See Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 208–09.
109
See id.
634 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
to every citizen.”
110
Therefore, as society evolves, so must constitu-
tional doctrine.
This is particularly relevant where judicial interpretation is in-
fluenced by a technological age that has the ability to reshape our
primary understanding of “information, knowledge, and human re-
lationships that was unknown even in the recent past.”
111
As new
challenges to privacy arise, courts must leave room for interpreta-
tion; today’s problems “have to be adjudged by a vibrant application
of constitutional doctrine and cannot be frozen by a vision suited to
a radically different society.”
112
Technological growth is so rapid
that it renders advances of a few years ago obsolete.
113
The only way
to maintain a relevant and applicable constitution is to view it as a
living instrument capable of reinterpretation and reevaluation by ap-
plying the principles on which it was founded in light of societal
change.
III. INDIA’S AADHAAR SYSTEM: A SPECIFIC PRIVACY ISSUE
A. The Aadhaar System
The need for additional legal analysis of privacy rights is evident
with the growth and development of technology, which has created
new mechanisms for the possible invasion of privacy by the state,
such as “surveillance, profiling, and data collection.”
114
Countries
are increasing their use of technology in light of “global terrorist
attacks and heightened public safety concerns.”
115
Digital footprints
and wide-ranging data can be analyzed to reveal “patterns, trends,
and associations, especially relating to human behavior and interac-
tions.”
116
Along with these advancements in technology come new
concerns of how such sensitive information is going to be dissemi-
110
Id. at 112.
111
Id. at 209.
112
Id. at 213.
113
Id.
114
See Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 7 (Kaul, J.,
concurring).
115
Id.
116
Id. at 10.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 635
nated and processed by the government, especially as engineers de-
velop more effective algorithms and greater computational
power.
117
At the forefront of the data collection debate is the Aadhaar card.
Initiated in 2009, Aadhaar is a twelve-digit number issued by the
Unique Identification Authority of India (“UIDAI”) to Indian resi-
dents.
118
Any individual, regardless of age or social status, may reg-
ister for an Aadhaar number free of charge.
119
The applicant must
provide demographic information (name, date of birth, age, gender,
address, mobile number, and email) and biometric information (fin-
gerprints, iris scan, and facial photograph).
120
Aadhaar is a “strategic policy tool for social and financial inclu-
sion, public sector delivery reforms, managing fiscal budgets, [in-
creasing] convenience and [promoting] hassle-free people-centric
governance [that] facilitates financial inclusion of the underprivi-
leged and weaker sections of the society.”
121
One of Aadhaar’s goals
is to create a national identity system that can work across state, lan-
guage, and database barriers, giving an identity to the most margin-
alized and vulnerable of populations.
122
Millions of impoverished
Indian citizens lack governmentally recognized identities, prevent-
ing them from gaining access to cell phones, lines of credit, bank
accounts, or government aid.
123
With an Aadhaar ID, those lacking
identification are now able to directly apply for housing subsidies,
healthcare, and food through bank account deposits.
124
Aadhaar can
be used in the delivery of food, employment, education,
125
social
117
Id.
118
About Aadhaar, UIDAI, https://uidai.gov.in/your-aadhaar/about-aadhaar.
html (last visited Jan. 10, 2018). Aadhaar means “foundation” in Hindi. Caroline
E. McKenna, India’s Challenge: Preserving Privacy Rights While Implementing
an Effective National Identification System, 38 BROOK. J. INT’L L. 729, 731
(2013).
119
About Aadhaar, supra note 118.
120
Id.
121
Id.
122
Nishant Shah, Identity and Identification: The Individual in the Time of
Networked Governance, 11 SOCIO-LEGAL REV. 22, 29 (2015).
123
McKenna, supra note 118, at 730.
124
Id. at 731.
125
State Govt to Transfer Scholarship Funds to Students’ Accounts, TRIBUNE,
http://www.tribuneindia.com/news/punjab/state-govt-to-transfer-scholarship-
funds-to-students-accounts/68619.html (last updated Apr. 17, 2015).
636 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
security, bank accounts,
126
or healthcare, by allowing the agency or
service provider to contact the central Unique Identification data-
base to confirm a beneficiary’s identity.
127
To date, 1.09 billion peo-
ple across India have obtained an Aadhaar identity.
128
B. Pros of the Aadhaar System
One of Indian Prime Minister Narendra Modi’s policy goals is
to extend Aadhaar to every Indian citizen as a method to prove his
or her identity and access governmental and financial services.
129
The Aadhaar system will benefit the poorest members of Indian so-
ciety by providing direct access to government services such as food
grains, cash subsidies, employment wages, education, health bene-
fits, or LPG (cooking fuel) distribution.
130
Direct distribution will
eliminate the problem of corrupt middlemen who enter false names
into welfare databases to collect money intended for the poor.
131
The
poor, who often lack identifying paperwork, such as proof of address
or birth certificates, will now be able to apply for telecom services
and passports, facilitating movement and communication through-
out the country.
132
As a result, people living at the bottom of the
socio-economic pyramid can participate in the marketplace and en-
joy the benefits of having a government identity.
133
126
Vikas Dhoot, UIDAI Tightens Norms for Aadhaar-Bank Account Linking,
HINDU, http://www.thehindu.com/news/national/uidai-tightens-norms-for-aadha
ar-bank-account-linking/article21938183.ece (last updated Dec. 20, 2017).
127
FAQs, Use of Aadhaar, UIDAI, https://uidai.gov.in/your-aadhaar/help
/faqs.html (last visited Jan. 10, 2018).
128
Saurabh Kumar, Why Aadhaar is India’s Unique Innovation for a Digital
Economy, YOUR STORY (Jan. 11, 2017), https://yourstory.com/2017/01/AAD
HAAR-DIGITAL-ECONOMY/.
129
Vidhi Doshi, A Security Breach in India Has Left a Billion People at Risk
of Identity Theft, WASH. POST (Jan. 4, 2018), https://www.washingtonpost.com
/news/worldviews/wp/2018/01/04/a-security-breach-in-india-has-left-a-billion-
people-at-risk-of-identity-theft/?utm_term=.147fb681aeb1.
130
Vanita Yadav, Unique Identification Project for 1.2 Billion People in In-
dia: Can It Fill Institutional Voids and Enable ‘Inclusive’ Innovation?, 6 CON-
TEMP. READINGS L. & SOC. JUST. 38, 45 (2014); Supreme Court Allows Linking
Aadhaar with PDS and LPS Subsidies, TIMES INDIA (Aug. 12, 2015),
https://timesofindia.indiatimes.com/india/Supreme-Court-allows-linking-Aadha
ar-with-PDS-and-LPG-subsidies/articleshow/48444953.cms.
131
Yadav, supra note 130, at 45; Doshi, supra note 129.
132
Yadav, supra note 130, at 45.
133
Id. at 44.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 637
Additionally, Aadhaar cards will facilitate banking and entrepre-
neurial endeavors.
134
UIDAI will be able to secure money transac-
tions through MicroATMs and mobile phones in rural areas of In-
dia.
135
Banks will be able to link their permanent account numbers
with Aadhaar numbers, making it easier for people to open bank ac-
counts without extensive identity documentation.
136
Linking one’s
bank account with Aadhaar can help to ensure direct and transparent
transfers of subsidies, weed out false beneficiaries, and reduce tax
evasion.
137
Aadhaar can provide a secure and reliable authentication service
for companies and entrepreneurs to facilitate market transactions.
138
For example, Aadhaar users are able to pay for goods with their fin-
gerprint or ID numbers.
139
The Indian Central Bank has introduced
outposts in rural grocery stores and other small business opera-
tions.
140
Merchants at these outposts are equipped with smartphones
and small fingerprint scanners that link their bank accounts to their
Aadhaar numbers.
141
Customers enter their Aadhaar number and
bank name into the smart phone and then scan one of their fingers.
142
After authentication, the amount owed is directly credited to the
134
Id. at 46.
135
Id. at 45.
136
Id. However, the mandatory linking of Aadhaar numbers with bank ac-
counts was declared unconstitutional in a September 26, 2018 judgment by the
Indian Supreme Court. Vidhi Doshi, India’s Top Court Upholds World’s Largest
Biometric ID Program, Within Limits, WASH. POST (Sept. 26, 2018), https://www.
washingtonpost.com/world/asia_pacific/indias-top-court-upholds-worlds-larg-
est-biometric-id-program-within-limits/2018/09/26/fe5a95b0-c0ba-11e8-92f2-
ac26fda68341_story.html?noredirect=on&utm_term=.f79aa79dd0f6 [hereinafter
India’s Top Court].
137
Konark Sikka, Making Aadhaar Mandatory: Benefits and Drawbacks,
DAILY O (Mar. 25, 2017), https://www.dailyo.in/politics/aadhar-card-uidai-bjp-
finance-bill-2017/story/1/16363.html; Aadhaar-PAN Link Will Prevent Tax Eva-
sion, Says FM Arun Jaitley, BUS. TODAY, https://www.businesstoday.in/cur-
rent/economy-politics/aadhaar-pan-link-tax-evasion-says-fm-arun-jait-
ley/story/257077.html (last updated July 25, 2017).
138
Yadav, supra note 130, at 44.
139
Id. at 45; Kumar, supra note 128.
140
McKenna, supra note 118, at 732.
141
Kumar, supra note 128.
142
Id.
638 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
merchant’s bank account.
143
This form of payment will not only fa-
cilitate commerce in rural areas, but will also assist farm workers
and merchants in entering the formal banking system, helping them
develop their credit history and allowing them to apply for loans.
144
C. Cons of the Aadhaar System
This large-scale, centralized collection, storage, and use of an
individual’s demographic and biometric information has serious pri-
vacy implications, especially considering that India lacks any type
of comprehensive privacy law or independent oversight agency.
145
Many fear that having one universal ID number will allow govern-
ment or private actors to discover sensitive demographic and bio-
metric information.
146
In fact, there have already been incidents of
hacking the UIDAI system and stealing Aadhaar infor-
mation.
147
Anonymous sellers having been using the WhatsApp mo-
bile application to provide unrestricted access to information from
more than one billion Aadhaar numbers.
148
For a fee of 500 Rupees
(around eight U.S. dollars), anyone can gain access to an individ-
ual’s name, address, date of birth, photo, personal identification
number, phone number, and email address.
149
Once Aadhaar infor-
mation is obtained, hackers use the numbers to print duplicate
Aadhaar cards to link SIM cards and bank accounts of unsuspecting
143
Id.
144
Id.; contra Rohan Venkataramakrishnan, How Long Can the Indian Gov-
ernment Continue Claiming Aadhaar Is Secure and Foolproof?, SCROLL (Jan. 4,
2018), https://scroll.in/article/863779/how-long-can-the-indian-government-con-
tinue-claiming-aadhaar-is-secure-and-foolproof (emphasizing the downsides of
biometric identification in relation to bank and identity fraud).
145
Asrani-Dann, supra note 54, at 61.
146
McKenna, supra note 118, at 732; see Aadhaar Data Theft Hasn’t Com-
promised UIDAI Server: Cops, TIMES INDIA (Aug. 8, 2017), https://timeso-
findia.indiatimes.com/city/bengaluru/aadhaar-data-theft-hasnt-compromised-uid
ai-server-cops/articleshow/59963733.cms; see also Rachna Khaira, Rs 500, 10
Minutes, and You Have Access to Billion Aadhaar Details, TRIBUNE,
http://www.tribuneindia.com/news/nation/rs-500-10-minutes-and-you-have-ac-
cess-to-billion-aadhaar-details/523361.html (last updated Jan. 5, 2018).
147
Aadhaar Data Theft Hasn’t Compromised UIDAI Server: Cops, supra note
146.
148
Khaira, supra note 146.
149
Id.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 639
users, most likely leading to identity theft.
150
Ironically, Aadhaar
was developed by the government as a method to combat corruption
and prevent false identification and fraud.
151
Despite the recent hacking incidents,
152
UIDAI continues to
claim that biometric information is encrypted at the source and “un-
authorized sharing and leakage of the data does not happen.”
153
UIDAI denied the media reports of any information hacking, stating
the news articles were a “case of misreporting” and claiming that
“Aadhaar data, including biometric information, is fully safe and se-
cure.”
154
UIDAI claims that having access to someone’s Aadhaar
number does not pose a threat because an individual’s iris or finger-
prints are also necessary for successful identification;
155
a mere dis-
play of demographic information cannot be misused without bio-
metrics.
156
However, this has been shown to be untrue, as identity
fraud is still occurring without the need for biometric authentica-
tion.
157
Conmen can print duplicate ID cards to use at airports or
withdraw funds by linking bank accounts with Aadhaar numbers or
phone numbers.
158
Despite UIDAI’s denial of data hacking, the re-
cent media reports regarding Aadhaar bring to light the issue of data
security as an aspect of privacy rights and may hinder UIDAI’s goal
of extending Aadhaar to every Indian citizen.
159
150
Sanket Visjayasarathy, Your Aadhaar Number on Sale for Rs 500, All
Aadhaar-linked Details of 1 Billion Indians Leaked, INDIA TODAY (Jan. 4, 2018),
http://indiatoday.intoday.in/technology/story/aadhaar-number-on-sale-for-rs-
500-linked-details-of-1-billion-indians-leaked/1/1123233.html.
151
Doshi, supra note 129.
152
Khaira, supra note 146.
153
Richa Mishra, The 12-Digit Conundrum, HINDU BUS. LINE (Mar. 13,
2017), http://www.thehindubusinessline.com/specials/india-file/aadhaar-the-12
digit-conundrum/article9582271.ece.
154
Samden Sherpa, Aadhaar Data Fully Safe, Cannot Be Breached or Leaked:
UIDAI Responds, GIZBOT (Jan. 5, 2018), https://www.gizbot.com/news/aadhaar-
data-fully-safe-cannot-be-breached-or-leaked-uidai-responds-046950.html.
155
Aadhaar Data Allegedly ‘Breached’ for Rs 500: All Your Questions An-
swered, INDIAN EXPRESS (Jan. 4, 2018), http://indianexpress.com/article/technol-
ogy/tech-news-technology/aadhaar-data-allegedly-breached-for-rs-500-heres-
everything-to-know-5011205/.
156
Khaira, supra note 146.
157
Venkataramakrishnan, supra note 144.
158
Id.
159
McKenna, supra note 118, at 731; Doshi, supra note 129.
640 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
UIDAI claims to protect users and their information
160
by
providing a secure and encrypted database, providing strict security
and storage protocols, penalizing anyone who tampers with data or
gains unauthorized access, and collecting limited data (no infor-
mation concerning religion, caste, community, class, ethnicity, in-
come, or health is collected).
161
However, there is little legal frame-
work in India to protect Aadhaar users from data breaches.
162
Be-
cause there are no comprehensive privacy laws in India, the activi-
ties of the state are regulated through “sector-specific laws and the
jurisprudential development of the right to privacy.”
163
The only effective legislation governing security and cyber-
crime in India is the Information Technology (Amendment) Act,
2008.
164
The sole provision addressing the privacy of personal in-
formation is section 72A, which “prescribes a penalty for breach of
privacy of an electronic record, but only applies to authorities exer-
cising power under the Act,” not to private individuals who may
gain access to information illegally.
165
Section 43 of the Information
Technology Act requires that corporations maintain “reasonable se-
curity practices and procedures,” defined as procedures intended to
protect information from “unauthorized access, damage, use, modi-
fication, disclosure or impairment.”
166
However, the Information
Technology Act gives corporations the freedom to determine which
procedures they will implement in protecting confidential infor-
mation, which may lead to the use of minimum data protection
160
Sherpa, supra note 154.
161
FAQs, Security in UIDAI System, UIDAI, https://uidai.gov.in/your-
aadhaar/help/faqs.html (last visited Jan. 10, 2018).
162
Vrinda Bhandari & Renuka Sane, Towards a Privacy Framework for India
in the Age of the Internet 13 (Nat’l Inst. of Pub. Fin. and Policy, Working Paper
No. 179, 2016).
163
Id.
164
See Information Technology (Amendment) Act, 2008, No. 10, Acts of Par-
liament, 2009 (India); Greenleaf, supra note 21, at 24–26; Margaret Rouse, Infor-
mation Technology Amendment Act 2008 (IT Act 2008), WHAT IS, http://whatis.
techtarget.com/definition/Information-Technology-Amendment-Act-2008-IT-
Act-2008 (last updated Jan. 2010).
165
Information Technology (Amendment) Act § 72A; Asrani-Dann, supra
note 54, at 65.
166
Information Technology (Amendment) Act § 43A.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 641
standards and lack of third-party oversight.
167
As discussed, there
are many cons to the Aadhaar system not just in its existence, but
also in its application to the right to privacy.
IV. CONSTITUTIONALITY OF THE AADHAAR SYSTEM
As there is no comprehensive legal framework for privacy pro-
tection and no explicit constitutional right to privacy in India,
168
one
must ask: is the Indian government violating individual privacy
rights through Aadhaar? Following the Supreme Court of India’s
declaration that privacy is a fundamental right,
169
the idea of a gen-
eral-purpose identification database is constitutionally questiona-
ble.
170
Determining privacy as a constitutionally protected right has
laid the foundation for more specific challenges to
various architectural and implementational aspects
of Aadhaar, and its impact on privacy—such as the
mandatory collection of biometric data, deployment
of private players for collection of information,
online authentication and the extent of authentication
data storage, and the possibility of data convergence
and profiling as a result of Aadhaar-seeding of vari-
ous databases.
171
A. The Aadhaar Act 2016
The Aadhaar Act 2016 (“the Act” or “the Aadhaar Act”), a
money bill passed by the Parliament of India, aims to provide legal
167
Vikas Asawat, Information Technology (Amendment) Act, 2008: A New
Vision Through a New Change 4 (2010) (unpublished article), https://pa-
pers.ssrn.com/sol3/papers.cfm?abstract_id=1680152.
168
See supra notes 161–66 and accompanying text; Bhatia, supra note 52, at
128.
169
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 262–63 (Sup. Ct.
India Aug. 24, 2017).
170
Prasanna S, Right to Privacy: What the Judgment Means for Aadhaar, Its
Constitutionality, INDIAN EXPRESS, http://indianexpress.com/article/explained
/fundamental-right-to-privacy-what-the-judgment-means-for-aadhaar-its-consti-
tutionality-4812231/ (last updated Aug. 25, 2017).
171
Id.
642 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
backing to the Aadhaar project.
172
The Act describes the Aadhaar
enrollment process, authentication procedures, the organizational
structure of UIDAI, methods for the protection of information, and
offenses and penalties.
173
The Act places UIDAI in charge of secur-
ing identity information, authenticating records, and implementing
“appropriate technical and organisational security measures.”
174
There are restrictions in place that regulate the sharing of infor-
mation with third parties, with an exception for the disclosure of in-
formation “made in the interest of national security.”
175
However, the Act was met with controversy, as section 7 speci-
fies that the government may “require” an individual to enroll in
Aadhaar to obtain government subsidies or services.
176
For example,
a 2016 finance bill has made Aadhaar mandatory for filing tax re-
turns and obtaining a permanent bank account number.
177
The In-
dian Supreme Court has directed that Aadhaar cannot be compul-
sory for beneficiaries or as a precondition to access welfare pro-
grams.
178
Initially, the Aadhaar project was presented to the public
as a voluntary program;
179
however, Aadhaar has now become man-
172
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Bene-
fits and Services) Act, 2016, No. 18, Acts of Parliament, 2016 (India) [hereinafter
The Aadhaar Act].
173
Id.
174
Id. § 28(4)(a).
175
Id. § 33(2).
176
Id. § 7; see V Nalinakanthi, All You Wanted to Know About Aadhaar Bill,
HINDU BUS. LINE (Mar. 21, 2016), http://www.thehindubusinessline.com/opin-
ion/columns/all-you-wanted-to-know-about-aadhaar-bill/article8381808.ece; Su-
preme Court Counters Push for Aadhaar, HINDU, http://www.the-
hindu.com/news/national/aadhaar-cannot-be-mandatory-for-welfare-schemes-
supreme-court/article17671381.ece (last updated April 7, 2017).
177
Supreme Court Counters Push for Aadhaar, supra note 176; Preeti Mo-
tiani, Don’t File ITR? You Still Need to Link PAN, Aadhaar Else PAN May Be-
come Invalid, ECON. TIMES, https://economictimes.indiatimes.com/wealth/per-
sonal-finance-news/dont-file-itr-you-must-link-pan-aadhaar-else-pan-may-be-
come-invalid/articleshow/59157881.cms (last updated June 18, 2017).
178
Supreme Court Counters Push for Aadhaar, supra note 176.
179
Jean Dreze, The Aadhaar Coup, HINDU (March 15, 2016), http://www.the-
hindu.com/opinion/lead/jean-dreze-on-aadhaar-mass-surveillance-data-collec-
tion/article8352912.ece.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 643
datory for an ever-widening range of services such as salary pay-
ments, pensions, school enrollment and scholarships, filing income
tax returns, and other welfare schemes.
180
Nevertheless, the Indian Supreme Court has pushed against
making Aadhaar mandatory for certain services.
181
Specifically,
there are currently a handful of petitions challenging the govern-
ment’s decision to make Aadhaar cards mandatory for government
services and welfare schemes, claiming the mandatory linking of
Aadhaar numbers to bank accounts and cell phones is illegal and
unconstitutional.
182
On September 26, 2018, the Indian Supreme
Court ruled on some of these petitions, declaring the mandatory
linking of Aadhaar numbers with all government welfare schemes
and services to be constitutional, while linking Aadhaar numbers
with private services such as bank accounts, employee pension
plans, or cell phone SIM cards cannot be a requirement.
183
Similar
to a 2015 interim order where the Indian Supreme Court struck down
the mandatory requirement of Aadhaar for private services,
184
the
2018 judgment will restrict Aadhaar’s mandatory usage to govern-
ment services only.
185
180
Id.
181
Supreme Court Counters Push for Aadhaar, supra note 176.
182
Dhananjay Mahapatra, Supreme Court Reserves Verdict on Aadhaar Va-
lidity, TIMES INDIA (May 11, 2018), https://timesofindia.indiatimes.com/india/su-
preme-court-reserves-verdict-on-aadhaar-validity/articleshow/64116972.cms;
Samanwaya Rautray, Aadhaar Lacks Regulatory Oversight: Supreme Court,
ECON. TIMES (May 11, 2018), https://economictimes.indiatimes.com/news/poli-
tics-and-nation/aadhaar-lacks-regulatory-oversight-supreme-court/arti-
cleshow/64117381.cms.
183
Justice K.S. Puttaswamy (Retd.) v. Union of India (Puttaswamy II), Writ
Petition (Civil) No. 494 of 2012 1, 90–92 (Sup. Ct. India Sept. 26, 2018); Man-
veena Suri, Aadhaar: India Supreme Court Upholds Controversial Biometric Da-
tabase, CNN (Sept. 26, 2018), https://www.cnn.com/2018/09/26/asia/india-
aadhaar-ruling-intl/index.html.
184
Krishnadas Rajagopal, Right to Privacy Verdict; A Timeline of SC Hear-
ings, HINDU BUS. LINE (Aug. 24, 2017), http://www.thehindubusinessline.com/
news/national/right-to-privacy-verdict-a-timeline-of-sc-hearings/article9829124.
ece (“[T]he purely voluntary nature of the use of Aashaar card to access public
service will continue [until] the court takes a final decision on whether Aadhaar
scheme is an invasion into the right to privacy.”).
185
India’s Top Court, supra note 136. See generally Puttaswamy II, Writ Pe-
tition (Civil) No. 494 of 2012.
644 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
B. Information Collection and the Legality of the Aadhaar Act
A primary concern is that the requirement of Aadhaar will result
in mass surveillance by the government, possibly leading to
breaches of confidentiality and privacy.
186
An identity scheme that
employs mass surveillance impairs an individual’s autonomy and
self-development and violates the constitutional protection of pri-
vacy and human dignity.
187
There is no telling how the Indian gov-
ernment will handle such information or the political and personal
consequences of government misuse of such large quantities of per-
sonal data.
188
As Justice Chandrachud explained in Puttaswamy I, “informa-
tional control empowers the individual to use privacy as a shield to
retain personal control over information pertaining to the person.”
189
As per his opinion, information can be collected subject to three re-
quirements: (1) legality—there should be the existence of law; (2)
need—the aim of the law for which information is being collected
is reasonable; and (3) proportionality—“the means which are
adopted by the legislature are proportional to the object and needs
sought to be fulfilled by the law.”
190
It is essential to analyze these requirements in relation to the
Aadhaar Act. As previously discussed, section 7 of the Act states
that in order to establish identity as a “condition for receipt of a sub-
sidy, benefit or service,” the central or state government may “re-
quire that such an individual undergo authentication, or furnish
proof of possession of an Aadhaar number.”
191
This provision opens
the door for the government to require Aadhaar registration for ben-
eficiaries, which the Supreme Court has already pushed against.
192
Additionally, the Act was passed in Parliament as a money bill
(a draft law that contains provisions concerning the regulation of a
tax, lending money to the Government of India, or withdrawal of
186
Dreze, supra note 179.
187
INDIA CONST. pmbl. (recognizing human dignity in the Constitution);
Asrani-Dann, supra note 54, at 87.
188
Asrani-Dann, supra note 54, at 87–88.
189
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 201 (Sup. Ct. India
Aug. 24, 2017).
190
Id. at 264.
191
The Aadhaar Act, 2016, No. 18, Acts of Parliament, 2016, § 7 (India) (em-
phasis added).
192
See Rajagopal, supra note 184.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 645
money from the Consolidated Fund of India), which has been chal-
lenged as unconstitutional because the Act contains provisions un-
related to government taxation and expenditure.
193
This leads us to
question Justice Chandrachud’s first requirement—is the Act even
legal?
194
According to the recent September 2018 Indian Supreme
Court decision in Puttaswamy II, it is.
195
In the judgment, the Court
declared that Aadhaar could legally be brought in as a money bill.
196
Nevertheless, it is essential to consider the Act’s need and pro-
portionality, which are directly related to requirements two and
three. While the aim of the Act is a reasonable one—to provide
every Indian with a unique identity number that enables a fair and
equitable distribution of benefits and subsidies—the use of bio-
metric information is not a reasonable means of data collection.
Along with being unreasonable, the means of data collection are not
proportional to the object or needs of the law.
C. Biometric Data Collection
Biometric information is the collection of data that is intrinsic to
each person, such as fingerprints, retina scans, voice analysis, DNA
analysis, or facial recognition.
197
The appeal of biometric infor-
mation is that it is hard to falsify; however, there are serious con-
cerns on the efficacy of biometric analysis.
198
The technology is not
foolproof—any biometric authentication process is prone to error.
199
For example, manual laborers may encounter problems with finger-
print scanning, as their hands may be worn or change over time.
200
In fact, fingerprint scanning has a false rejection rate of eleven per-
cent (11%).
201
193
Suhrith Parthasarahy, What Exactly Is a Money Bill?, HINDU,
http://www.thehindu.com/opinion/lead/what-exactly-is-a-money-bill/article1737
2184.ece (last updated Feb. 27, 2017).
194
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 264.
195
Puttaswamy II, Writ Petition (Civil) No. 494 of 2012 1, 487 (Sup. Ct. In-
dia Sept. 26, 2018).
196
Id.
197
Asrani-Dann, supra note 54, at 75–76.
198
Id. at 81–82.
199
Id.
200
Id. at 81; McKenna, supra note 118, at 755.
201
Asrani-Dann, supra note 54, at 82.
646 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
Because biometric schemes are expensive, there is a greater ten-
dency towards data sharing among organizations, leading to a larger
interconnected web of personal information.
202
Even though other
countries have implemented successful ID card schemes, most do
not use biometric identifiers or have multiple applications.
203
UIDAI
can still reach its goal of creating a database of every Indian citizen
with the use of demographic information. Other options include
storing biometric information on an offline terminal, where the in-
formation is not stored in a single centralized online database, or
using smartcards, where biometric information is kept directly on
the card itself.
204
These alternatives present fewer security concerns
and are more reasonable methods of data collection and storage.
205
D. Constitutional Challenge Analysis
Contrary to the Indian Supreme Court’s findings in Puttaswamy
I and II, the Aadhaar system is unconstitutional and a violation of
privacy rights. Informational privacy is a facet of the right to pri-
vacy.
206
While there exists a sensitive balance between individual
interests and legitimate concerns of the state, the Indian government
would have a difficult time establishing a compelling state interest
that would outweigh the protection of privacy rights. A legitimate
aim of the state would include, for instance, protecting national se-
curity, preventing and investigating crime, encouraging innovation
and the spread of knowledge, and/or preventing the dissipation of
social welfare benefits.
207
While these state interests are of im-
portance, a constitutionally protected right should take precedence
over such state aims.
202
Id. at 77.
203
Id. at 69 (countries such as Belgium, Greece, Luxembourg, Germany,
France, Portugal, and Spain all have official, compulsory national ID cards).
204
Kritika Bhardwaj, The Mission Creep Behind the Aadhaar Project, WIRE
(Sept. 2, 2016), https://thewire.in/63223/the-mission-creep-behind-the-uidais-
centralisation-ideology/.
205
Id.
206
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 201 (Sup. Ct. India
Aug. 24, 2017).
207
Id. at 265.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 647
While it has been argued that the Aadhaar Act violates the Indian
Constitution under Article 14 (right to equal protection),
208
Article
19(1)(d) (right to move freely),
209
Article 19(1)(g) (right to practice
any profession, occupation, trade or business),
210
and Article 21
(right to life and personal liberty),
211
the Indian Supreme Court has
declared the Act constitutional. Article 141 of the Indian Constitu-
tion states the following: “The law declared by the Supreme Court
shall be binding on all courts within the territory of India.”
212
This
ensures that the Supreme Court of India may pass a decree or order
as is necessary for doing justice in any cause or matter before it, and
any decree or order passed is enforceable throughout all of India.
213
However, despite the fact that the Supreme Court’s ruling is
binding, Article 13(2) of the Indian Constitution may provide a legal
mechanism to declare the Aadhaar Act unconstitutional. Article
13(2) declares that “the State shall not make any law which takes
away or abridges the rights conferred by [Part III (Fundamental
Rights)] and any law made in contravention of this clause shall, to
the extent of the contravention, be void.”
214
Therefore, a law that
enables the collection of identity data without adequate safeguards
violates the right to privacy under Article 21 (which is included in
Part III of the Indian Constitution) and should be declared void un-
der Article 13(2). Under this analysis, the Act should have been de-
clared unconstitutional by the Puttaswamy I court.
208
The Aadhaar Debate: ‘The State Has No Right of Eminent Domain on the
Human Body,’ WIRE (Apr. 28, 2017), https://thewire.in/129622/aadhaar-income-
tax-supreme-court/ (arguing that forcing taxpayers to enroll in Aadhaar violates
the constitutional guarantees of equal protection under Article 14).
209
Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 19.
210
Asheeta Regidi, SC Stay on Aadhaar-PAN Linkage: There Is Still Hope for
Privacy, Section 139AA Detractors, FIRST POST (June 12, 2017), http://www.first-
post.com/india/sc-stay-on-aadhaar-pan-linkage-there-is-still-hope-for-privacy-
section-139aa-detractors-3543917.html (discussing the argument that the manda-
tory linkage of Aadhaar to permanent account numbers violates the right to free-
dom of profession).
211
See generally Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 at 1–5.
212
INDIA CONST. art. 141.
213
Id. art. 142.
214
Id. art. 13 § 2.
648 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
E. New Legislative Proposals
Even though the Aadhar Act has been declared constitutional,
there should be safeguards to the system. The portions of the Put-
taswamy I judgment that discuss data protection and privacy state
that “any collection of personal information that would impact pri-
vacy must have a law to back it.”
215
Accordingly, in order to ensure
the success of Aadhaar, India must pass comprehensive privacy leg-
islation that provides “judicial remedies and other enforcement
mechanisms for preventing privacy violations.”
216
Considering that
the right to privacy has been declared a protected right under the
Indian Constitution, this task should be made easier.
217
New legislation should include the following: (1) methods for
which individuals can object to the use of certain personal infor-
mation; (2) explanations regarding exactly how personal infor-
mation is going to be used; (3) third party oversight of UIDAI; (4)
transparency of new developments, practices, and policies; and (5)
prompt judicial review of situations where information was improp-
erly used or obtained.
218
Additionally, different agencies and service providers should be
prevented from data sharing. The interloping of data between organ-
izations would leave an electronic trail of an individual’s activities
and records and allow information collected for one purpose to be
used for altogether different purposes.
219
For example, interlinking
of databases could occur if, when applying for a job, an employer
could access medical records, banking information, or voter regis-
tration of a potential employee. Personal data should be limited or
kept relevant to its purpose and used to the extent necessary for that
purpose. Finally, individuals should be able to request and obtain
information concerning their personal data and have a means of
challenging that data. If the challenge is successful, the data should
be modified or erased.
215
Prasanna S, supra note 170.
216
McKenna, supra note 118, at 734.
217
See generally Puttaswamy I, Writ Petition (Civil) No. 494 of 2012 1, 262
(Sup. Ct. India Aug. 24, 2017).
218
Contra The Aadhaar Act, 2016, No. 18, Acts of Parliament, 2016, § 47(1)
(India) (prohibiting a complaint from being admitted before a court unless it has
been filed by the UIDAI authority).
219
Asrani-Dann, supra note 54, at 77.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 649
V. IMPLICATIONS OF AN AADHAAR-LIKE SYSTEM
IN THE UNITED STATES
The United States has historically rejected attempts to create a
national ID system.
220
While the United States does issue Social Se-
curity numbers and stores biometric information in the criminal da-
tabase, there is no universal biometric database from which to pull
information.
221
With the growth of interconnected technology, it is
important to address the consequences of a system like Aadhaar in
the United States if an equivalent system were to be implemented.
Because an Aadhaar ID is technically voluntary for privatized
services, it is essential to consider how disclosing personal infor-
mation to a third party affects one’s privacy rights. Even though the
Aadhaar Act provides certain safeguards,
222
there are risks associ-
ated with the voluntary disclosure of information. For example, in
United States v. Miller, it was determined that there is no reasonable
expectation of privacy in bank records disclosed to a third party
when done in the ordinary course of business.
223
In that case, the
government was able to gain access to the individual’s bank records
even though they were confidential.
224
Similarly, voluntarily dis-
closing information to an agency like UIDAI may waive any rea-
sonable expectation of privacy.
While the United States government may assert that the voluntary
disclosure of information is not protected by the Fourth Amend-
ment, one can argue that, in practice, the use of a national ID card
may not actually be voluntary. As seen with the Aadhaar cards, the
government can require ID cards to be mandatory in order to access
certain welfare services or file income tax returns. When consider-
ing the services that demand an Aadhaar card, such disclosure of
information is not voluntary in any meaningful sense of the word,
but a requirement. Therefore, unlike the holding in Miller, the U.S.
220
Id. at 69.
221
Anumeha Yadav, Despite the Comparisons, India’s Aadhaar Project Is
Nothing Like America’s Social Security Number, SCROLL (Dec. 20, 2016),
https://scroll.in/article/823570/despite-the-comparisons-indias-aadhaar-project-
is-nothing-like-americas-social-security-number.
222
See, e.g., The Aadhaar Act, 2016, No. 18, Acts of Parliament, 2016,
§ 29(1)(a) (India) (“No core biometric information collected or created under this
Act shall be—shared with anyone for any reason whatsoever[.]”).
223
425 U.S. 435, 441–42 (1976).
224
Id. at 438.
650 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
government would fail in arguing that voluntarily providing infor-
mation to a third party in order to obtain an ID card should not be
granted Fourth Amendment protections.
If a national ID system were to be implemented in the United
States, the government would be able to gain access to an individ-
ual’s confidential information (even the Aadhaar Act has a provision
that allows disclosure of information in the “interest of national se-
curity”).
225
Access to such information would implicate the Fourth
Amendment, as there is a reasonable expectation of privacy when
disclosing personal information.
226
As Justice Sotomayor stated in
United States v. Jones, “I would not assume that all information vol-
untarily disclosed to some member of the public for a limited pur-
pose is, for that reason alone, disentitled to Fourth Amendment pro-
tection.”
227
The government’s use of personal information to moni-
tor someone’s actions, habits, and communication is a violation of
the Fourth Amendment unless the Amendment’s requirements were
satisfied, as it creates a comprehensive picture of that person’s
life.
228
The gathering of biometric information into large databases has
been a growing concern in the United States.
229
It has been argued
that biometric ID cards contain information so personal to one’s
body (iris scans, facial recognition, and fingerprints), that protection
extends beyond one’s body and to the cards, making a violation of a
card’s information a personal privacy violation.
230
In 2017, the In-
dian Supreme Court considered two writ petitions pending before it
concerning the right to bodily autonomy, claiming the collection of
biometric information under Aadhaar constitutes bodily intrusion
225
The Aadhaar Act, 2016, No. 18, Acts of Parliament, 2016, § 33(2) (India).
226
Miller, 425 U.S. at 448–50 (Brennan, J., dissenting).
227
565 U.S. 400, 418 (2012) (Sotomayor, J., concurring).
228
Id. at 415.
229
See Kartikay Mehrotra, Tech Companies Are Pushing Back Against Bio-
metric Privacy Laws, BLOOMBERG BUSINESSWEEK (July 19, 2017),
https://www.bloomberg.com/news/articles/2017-07-20/tech-companies-are-push
ing-back-against-biometric-privacy-laws.
230
Before Aadhaar-PAN Verdict, A Lively Debate over Bodily Autonomy and
Living with Dignity, WIRE (May 3, 2017), https://thewire.in/131698/before-
aadhaar-pan-card-verdict-debate-over-bodily-autonomy-and-living-a-dignified-
life/ [hereinafter Before Aadhaar-PAN Verdict].
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 651
under Article 21.
231
The petitions argued that unless there is a com-
pelling state interest, such as identifying a murder suspect or border
control, the use of biometric information should be narrowly tailored
and not be permitted as a “24/7 tracking system.”
232
Because of the
potential misuse of biometric information, certain states in the
United States have enacted privacy laws protecting the collection
and use of biometric information by companies.
233
While the Fed-
eral Bureau of Investigation and Customs and Border Patrol have
been permitted to collect and access biometric information, there has
yet to be a nationwide collection system.
234
Data sharing is also an issue, as data commoditization has cre-
ated an entire industry around the buying and selling of personal in-
formation.
235
As stated in Riley v. California (which extended
Fourth Amendment protection to cell phones), technology allows
individuals to carry massive amounts of data that is stored in one
central location, such as a cell phone.
236
Similarly, information that
is gathered and stored in one centralized database and shared be-
tween agencies and service providers should also be afforded Fourth
Amendment protections. A centralized database is similar to a cell
phone—large amounts of information are stored in one location,
giving the government free reign to use and explore that data. Not
only is this information at risk in the state’s hands, but private actors
may be able to gain access to the database via hacking, such as the
recent reports of unauthorized access of the UIDAI system.
237
Normalization of the collection, use, and synchronization of data
is dangerous. When citizens become accustomed to the government
231
Id.; see Puttaswamy II, Writ Petition (Civil) No. 494 of 2012 1, 221–22
(Sup. Ct. India Sept. 26, 2018).
232
Before Aadhaar-PAN Verdict, supra note 230.
233
Mehrotra, supra note 229 (discussing Illinois’ passage of the Biometric In-
formation Privacy Act of 2008 to regulate the commercial use of finger, iris, and
facial scans).
234
Id.
235
Bhandari & Sane, supra note 162, at 8.
236
134 S. Ct. 2473, 2493 (2014).
237
See Khaira, supra note 146; see also Mayur Shetty, Aadhaar Cyber Hit
Will Cause Incalculable Loss, TIMES INDIA (Jan. 10, 2018), https://timeso-
findia.indiatimes.com/india/aadhaar-cyber-hit-will-cause-incalculable-loss/arti-
cleshow/62436726.cms.
652 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
requiring the collection of sensitive personal data, they become de-
sensitized to the experience.
238
It then becomes the norm for the state
to monitor and collect information about one’s life and preferences,
leading to an Orwellian
239
way of life where state surveillance is
omnipresent.
240
It is essential to a democratic form of government
to allow citizens to speak their mind and dissent without fear of ret-
ribution from the state.
241
If the public fears the monitoring and stor-
ing of their views, they will engage in self-censorship and be less
likely to express a “contrarian or controversial view point.”
242
Additionally, private actors may take advantage of such a sys-
tem. For example, one wealthy neighborhood in India requires all
labor and domestic workers to have an Aadhaar card.
243
The resi-
dents felt it was a cheaper and more reliable way of controlling sur-
veillance of the neighborhood, rather than a police verification pro-
cess.
244
However, allowing private actors to take on a police role
could lead to discrimination, isolation, and profiling of minority
groups.
The implementation of a national ID system in the United States
would have grave consequences to personal privacy rights. The
Aadhaar system should serve as a lesson to the United States about
how a purportedly “pro-poor, pro-development,” and “anti-corrup-
tion” mechanism can result in mass surveillance, mandatory enroll-
ment, and dangerous hacking.
245
To maintain a liberal democratic
society that values and upholds privacy rights, the United States
238
SURVEILLANCE, PRIVACY, AND SECURITY: CITIZENS’ PERSPECTIVES 217
(Michael Friedewald et al. eds., 2017).
239
See Charlotte Ahlin, The Meaning of ‘Orwellian’ Is More Complicated
than You Think — and It’s Extremely Relevant to Modern Politics, BUSTLE (May
24, 2018), https://www.bustle.com/p/the-meaning-of-orwellian-is-more-compli-
cated-than-you-think-its-extremely-relevant-to-modern-politics-9118383 (de-
scribing modern understandings of the term “Orwellian” as being associated with
totalitarian governments, constant surveillance, and limits to personal freedom).
See generally GEORGE ORWELL, 1984 (1949).
240
See Ahlin, supra note 239; see also ORWELL, supra note 239, at 4 (describ-
ing government surveillance of citizens via television).
241
See Bhandari & Sane, supra note 162, at 10.
242
Id.
243
Kalyani Menon Sen, Aadhaar: Wrong Number, or Big Brother Calling?,
11 SOCIO-LEGAL REV. 85, 105 (2015).
244
Id.
245
Shah, supra note 122, at 28; see also Shetty, supra note 237.
2019] BIOMETRIC IDENTIFICATION IN INDIA VS THE RIGHT TO PRIVACY 653
should avoid proposing such a system, no matter how beneficial and
convenient it may seem.
CONCLUSION
In 2018, the Indian Supreme Court considered several petitions
submitted in prior years addressing the mandatory use of Aadhaar
and the overarching matter of citizens’ right to privacy.
246
In the
2018 Puttaswamy II judgment, the Court declared Aadhaar to be
constitutional and ruled that Aadhaar can be a mandatory require-
ment for government services.
247
However, the mandatory linkage
of Aadhaar numbers to bank accounts and other private services is
unconstitutional.
248
If the Indian Supreme Court had stricken down
the Aadhaar Act as an unconstitutional violation of privacy rights,
the Act might have been amended and re-implemented with greater
privacy protections. By the Court permitting the mandatory linkage
of Aadhaar to government services, the program will become the
most essential and pervasive identity proof in India—the one num-
ber that connects citizens and residents to all governmental agen-
cies.
249
While Aadhaar may create a more efficient distribution of
services, it also exposes a vast number of Indians to cybercrime and
potential privacy violations.
250
However, considering that most Indians have already registered
for Aadhaar,
251
the government may continue to incentivize
Aadhaar linkages by creating persuasive and innovative ways to en-
courage the voluntary linkage of Aadhaar identities to private
schemes. Even if this is the case, universal Aadhaar participation
would not be the grimmest outcome (considering the benefits that
246
Rajagopal, supra note 184; India’s Top Court, supra note 136; Like It or
Not, Aadhaar Will Be the Basis of Your Life in 2018, ECON. TIMES, https://eco-
nomictimes.indiatimes.com/news/politics-and-nation/like-it-or-not-aadhaar-will-
be-the-basis-of-your-life-in-2018/articleshow/62303979.cms (last updated Dec.
30, 2017) [hereinafter Aadhaar Will be the Basis of Your Life].
247
Puttaswamy II, Writ Petition (Civil) No. 494 of 2012 1, 90–92 (Sup. Ct.
India Sept. 26, 2018); India’s Top Court, supra note 136.
248
Puttaswamy II, Write Petition (Civil) No. 494 of 2012 at 90–92; India’s
Top Court, supra note 136.
249
Aadhaar Will Be the Basis of Your Life, supra note 246.
250
Id.
251
Kumar, supra note 128.
654 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:618
Aadhaar does provide),
252
as long as there are efficient and reliable
privacy measures to protect identity information and prevent mass
surveillance by the Indian government.
The Indian Supreme Court’s analysis of the right to privacy in
the Indian Constitution is one step toward the implementation of
more specific and enforceable privacy laws in India. Having a flex-
ible and resilient interpretation of the Indian Constitution will allow
future generations to address the concerns of a system such as
Aadhaar. As rapid technological growth may render obsolete many
present notions of privacy and security, laws must be able to evolve
with the necessities and concerns of the time.
The Aadhaar system is fast becoming mandatory for government
services in India for citizens and noncitizen residents alike. Com-
munity and government leaders can and should demand effective
data privacy legislation to prevent the Orwellian
253
outcome of mass
surveillance, data collection, and state intrusion. As more and more
citizens become conditioned to accepting state intrusion into their
lives, they run the risk of normalizing government data collection
for possibly unconstitutional purposes.
254
Therefore, effective legis-
lative solutions should include third-party oversight, judicial review,
and transparent disclosures of information distribution.
These core elements of privacy will—at minimum—remove in-
centives to impose even more personally invasive methods of data
collection and monitoring. This visceral loss of privacy weakens au-
tonomy, leads to greater self-censorship, and increases risks for
identity theft, profiling, and discrimination.
255
Losing privacy pro-
tections implicates cores values enshrined in the Constitutions of In-
dia and the United States. Hopefully, the United States will gain in-
sight from the Aadhaar decisions in India and, if the United States
does decide to implement a similar system, it should do so with pri-
vacy protections in mind.
252
See generally McKenna, supra note 118, at 729–32 (describing how
Aadhaar empowers the poorest segments of Indian society).
253
See Ahlin, supra note 239.
254
See SURVEILLANCE, PRIVACY, AND SECURITY: CITIZENS’ PERSPECTIVES,
supra note 238, at 217.
255
Bhandari & Sane, supra note 162, at 9–12.
