The Supreme Court recently constituted a nine-judge bench to decide the extent to which Indians are entitled to the right to privacy; this may be a prelude to the most significant decision of the Court in the 21st Century. Arrayed before this Bench are the country’s top lawyers; ready to assist it with their immense legal knowledge. At the centre of this controversy is the humble Aadhaar.

The importance of Aadhaar, in this digital era, may be appreciated by the fact that a host of Government agencies have filed separate applications praying for exemption from the Supreme Court’s interim order limiting the use of Aadhar. However, unknown to most of us, much of the damage to our right to privacy has already been done.

A case in the point is data sharing by the Income-tax Department, which is the repository of a humongous amount of sensitive data.

To recount: the Income-tax Department has PAN data of 25 crore people, Income-tax returns data of 5 crore people plus data about the financial transactions of an equal number of persons not all of whom are PAN holders. To protect this confidential data, Section 138 of the Income-tax Act mandates that data available with the Income-tax Department can be furnished only by a Commissioner (and above) level officer and that too subject to rigorous conditions.

Section 280 of the Income-tax Act prescribes imprisonment of six months for a public servant who furnishes data in contravention of Section 138. Unfortunately, the provisions of Section 138 have been diluted by a number of notifications, the latest having been issued in February 2017, which has removed almost all restrictions on sharing of data. Pursuant to the notification of February 2017, the Income-tax Department has signed an MOU with National Intelligence Grid (NATGRID) for sharing of bulk data with them.

The practice earlier was to share data only on a need to know basis, that is data was shared only in respect of persons suspected or accused of some crime. After the signing of this MOU data of all PAN holders would be handed over; which means that all data pertaining to taxpayers (of whom 99.9999% are not terrorists) would be available to an anti-terrorist agency which would definitely use the data to profile innocent taxpayers.

Another alarming instance of the tendency to deal recklessly with the citizen’s trust and privacy is a reported MOU between the Income-tax Department and the Petroleum Ministry by which oil companies would get the entire PAN data in respect of individual tax payers having income exceeding Rs.10 lakh, with the stated objective of preventing such tax payers from availing cooking gas subsidy of a piddling amount (It is interesting to note that as per earlier Government claims most of such persons had voluntarily given up the gas subsidy).

Significantly, none of these high net worth individuals is guilty or accused of any crime and most of these persons may not have availed of the gas subsidy but by a stroke of the pen, the private data of lakhs of individuals has been made available to persons who can make no legitimate use of it.

Coming to the present controversy, Aadhaar linkage of data available with Government agencies can make the right to privacy a chimera because any person with knowledge of Aadhaar number and access to Government databases can ferret out the most intimate details of any citizen. Soon the bizarre joke about a person, who ordered a burger from a McDonald outlet only to have his confidential details recounted by the attendant and finally being told by the attendant that in light of his (the customer’s) medical history, the burger would not be served to him, may become a reality.

Significantly, judicial forums have consistently held that PAN (which can be taken as the precursor of Aadhaar) is confidential and need not be disclosed even under the RTI Act.

The GST clause requiring the furnishing of full personal details for any transaction above Rs.50,000 can prove disastrous to the right to privacy because this provision would ensure that even data regarding cancer and HIV medication, hospital stays etc. would be available to anyone pressing the right buttons.

In our democratic setup, the Government is finding it hard to justify its desire to restrict the right of privacy; it is noteworthy that the Government had averred that privacy was a fundamental right in the WhatsApp privacy case – which is diametrically opposite to the stance taken by the Government in the Aadhaar case. Interestingly, this response of the Government prompted the WhatsApp Bench to refer the matter to the Aadhar Bench.

Finally, it would appear that the Government is trying to persuade the Aadhaar Bench that though the right to privacy is not a fundamental right it would ensure this right to citizens by passing a Right to Privacy Act.

This is a hollow promise, as demonstrated by the manner in which Incometax data is being widely shared despite explicit legislative provisions to the contrary.

Rather, the setting up of the NATGRID database, which would have all data entrusted by citizens to Government agencies, reveals the Government’s true intentions. Unless the Supreme Court comes to our rescue, we are doomed to an Orwellian future.

(The writer is a freelance contributor who comments on governance issues.)