If India was in EU, Aadhaar would have been exempted from GDPR.. Supreme Court needs to ponder..

Currently GDPR and Aadhaar are both hot subjects for discussion amongst professionals whether they are Privacy activists, Information Security professionals or Lawyers.

GDPR is at one end of the spectrum often looked upon by Privacy activists as the ultimate in Privacy Protection legislation. Aadhaar on the other hand is at the other end of the spectrum often looked upon as the greatest villain in Privacy breach in India.

The Supreme Court of India continues to hear the petition of Privacy Activists who are more concerned about the political damage they can create on the Government by attacking Aadhaar than any public good.

There appear to be some foreign technical persons calling themselves “Ethical Hackers” who are camping in India to hack into Aadhaar data and prove that Aadhaar is the epitome of Privacy invasion in India. It is not clear where motivation comes to these persons and whether they are motivated by their commitment to the Privacy of the Indian Citizen or committed to the political advantages that can accrue to Black Money owners in India if the present intentions of the Government to link Aadhaar to Mobile and Bank accounts is frustrated through intervention from the Supreme Court

We the Indians are aware that even Supreme Court is having its own agenda and many times takes decisions which are “TRP oriented”. The Privacy judgement, the Scrapping of Section 66A are examples of decisions where the Court has shown its inclination to come to conclusions based on the public perception that can be created about the “Progressive Views of the Judiciary”.

In this context it is essential for us to examine how does GDPR try to address the issues of Privacy in the context of Public interest, National Security and Journalistic freedom.

Chapter IX of GDPR  refers to “Provisions Related to Specific Data Processing Situations” and sets in the rules regarding processing of personal data in the context of Right to Freedom of Expression and other issues including “Processing of National Identification Number”.

Article 85 of GDPR  leaves it to member states to reconcile by law the right to protection of personal data pursuant to GDPR with the right to freedom of expression and information including processing for journalistic purposes and the purposes of academic, artistic and literary purposes.

Article 86 refers to personal data in official documents held by a public authority or a private body for the purpose of carrying out an activity in the public interest which may be disclosed under a Right to Information kind of law.

As one can appreciate, the canvas to define exclusion under Article 85 and 86 is fairly wide and if we take this as a guide for the Indian context where we are waiting for our own Data Protection law, there is enough scope to consider that our existing laws including the Right to Information Act can be considered as an automatic exclusion to GDPR.

Article 87 is interesting since it directly relates to a situation similar to Aadhaar. It states as under:

Article 87: Processing of the national identification number

Member States may further determine the specific conditions for the processing of a national identification number or any other identifier of general application. In that case the national identification number or any other identifier of general application shall be used only under appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation.

This article provides complete rights to member states to over rule GDPR when it comes to processing of national Identification Number or any other identifier of general application. Obviously, “Appropriate safeguards” are prescribed.

This article provides guidelines both to Indian Companies who are often over reacting to the GDPR  by imposing on themselves non existing restrictions on to what extent the local regulations may over ride GDPR and yet it can be considered as “GDPR Compliance”.

If the member states of EU themselves have the freedom to enact laws that may over ride EU, it is obvious that an independent sovereign country like India where in most cases, the GDPR application is through the contracts between the Data Controller in EU and a Data Processor in India, the local laws such as Information Technology Act 2000/8 will have paramount priority over and above GDPR.

I therefore caution Indian Companies that in their eagerness to be GDPR compliant, they should not ignore the need to be ITA 2008 compliant.

We need to build GDPR Compliance within the parameters of ITA 2008 compliance. Fortunately, ITA 2008 is eminently designed for such requirement since Section 43A and definition of “Reasonable Security Practice” accommodates such contracts as defining the security requirements for compliance. The only difference would be that the remedy may have to be sought under ITA 2000/8 read along with international treaties and laws applicable to international contracts. GDPR cannot be super imposed in derogation of these other remedial options.

The second aspect we need to take note from Article 87 is that even the rigorous GDPR regulation on Privacy provides for an exception of National Identification Number in the EU member countries. Hence the Indian Data Protection Act can also exempt the processing of Aadhaar data from the restrictions.

The Supreme Court should therefore take cognizance of this fact and donot make the mistake that they committed in scrapping of Section  66A of ITA 2008 while ruling on Aadhaar.

Linking of Aadhaar to Bank accounts and to Mobile is a requirement of public interest to prevent Black Money, Benami transactions as well as Terrorism and Crimes and the right of the Government to use the National Identification Number such as Aadhaar for such purposes cannot be curtailed by the Court without taking on the blame that the decision is meant to please the silent majority of anti nationals who advocate that Aadhaar has to be scrapped.

The above support for Aadhaar is however not in derogation of the requirement that there has to be adequate safeguards to secure the Aadhaar usage in a manner that it cannot be misused to commit crimes. It is in this context that the “Virtual Aadhaar” becomes most important as a security measure so that at least in the future “Stored Biometric Attacks” through the Aadhaar user agencies does not occur.

My support for Aadhaar above also does not mean that Aadhaar authorities are taking all steps that are necessary for securing the infrastructure of Aadhaar and that they are not arrogant and not dismissive of the risks.

It is however considered that Aadhaar linking to Financial information and identity of individuals to several activities is essential to build a Safe India and no legal hurdle should be placed to prevent this honest effort of the Government. The security concerns are however real but can be addressed if UIDAI makes full efforts in this regard.

The first thing UIDAI needs to check is the progress of the Virtual Aadhaar implementation. The system should be in trial operation by 1st of April and in mandatory operation by 1st of July.

While some data security organizations in India are busy conducting surveys on our GDPR preparedness, UIDAI itself or other data security organizations should focus also on conducting a survey on our preparedness for implementation of Virtual Aadhaar as an identity to replace Aadhaar identity by Banks and Mobile operators.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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1 Response to If India was in EU, Aadhaar would have been exempted from GDPR.. Supreme Court needs to ponder..

  1. Firdaus Lalkaka says:

    To make it simpler for a citizen to understand the law as well as the interpretations and decisions given by the Supreme Court in various cases that have come up before it, I sincerely feel that the laws should be suitably amended immediately to incorporate the decision of the Supreme Court.
    Doing so, would obviate the need to quote “case laws” while filing cases.

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