adhar and privacy

 While the Aadhaar Act’s provisions on core biometric information help in protecting privacy, there is a compelling case in re-evaluating these restrictions in specific contexts

 Unique Identification Authority of India (UIDAI) has strict regulations about the disclosure of data in order to protect a person’s right to privacy and ensure that there is no misuse of personal data. In the normal course of events, the police do not have access to either demographic or biometric information in the Aadhaar database. While Section 33(1) of the Aadhaar Act permits the disclosure of certain information under an order of a court not inferior to that of a High Court judge, Section 29(1) and the proviso to Section 33 itself make it very clear that “core biometric information”, which includes fingerprints and iris scans, cannot be shared with anyone for any reason whatsoever.

Upholding rights and the dilemma

However, there are cases, especially those which involve identifying unknown bodies, where access to fingerprint data can offer essential scientific support to an investigation and reinforce the fundamental right to a life with dignity. The dilemma here involves balancing the two components of the right to life i.e., the right to privacy with the right to life with dignity. A number of rulings by High Courts and the Supreme Court of India have highlighted the need for respectful and humane treatment of bodies. For example, courts have addressed issues such as the inhumane practice of keeping a prisoner’s body hanging for an extended period after death during an execution (as outlined in certain prison manuals), as well as the need to ensure the respectful repatriation of the bodies of migrant workers who die abroad.

There are cases of deceased individuals who are unknown, but investigation by the police later show that they are predominantly from economically disadvantaged backgrounds. Many are daily wagers in the informal sector or are migrants moving between districts and States. They also involve individuals who have strained family relationships. These factors, of a lack of close connections, communication breakdown, and unequal access to the criminal justice system, are what frequently result in missing person reports not being filed by family or the next of kin. These unidentified bodies are either homeless people or those living in makeshift accommodations on highways, victims of hit-and-run accidents without identification documents or mobile phones, or those with mental health issues and travelling to unfamiliar places. In some instances, they may be victims of homicide, with the bodies disposed of in remote areas by the perpetrators to escape detection.

When an unidentified body is found, the standard investigative procedure is to examine the body, photograph it and make a note of distinctive features such as tattoos, scars, or deformities. Evidence is collected from the scene, CCTV footage analysed, phone records if available, scrutinised and information sent to local police stations, border districts and the media. There are also checks against prior missing person reports. Fingerprints are also collected and sent to fingerprint bureaus to be matched against criminal records.

The value of fingerprints cannot be overstated. Even in cases where a body is severely decomposed, fingerprints can still be retrieved by experts — the ridge pattern-bearing skin of the fingertips is retrieved and placed in a solution of formaldehyde.

A limited database

Unfortunately, fingerprint databases for police investigations are often limited to the records of those with known criminal histories. In many States, these records are not yet digitised, making it even more difficult to cross-reference data quickly and efficiently. In these situations, accessing the Aadhaar database would help in the identification of bodies. If a fingerprint search returns a match, the police could potentially identify the individual, and help family members with the last rites. it would also ensure that investigations, especially in cases of homicide, proceed effectively.

In this scenario, the absolute prohibition in the Aadhaar Act, against sharing core biometric information for any purpose, is a significant challenge. In the United States, law enforcement agencies can access advanced identification tools through the Deceased Persons Identification (DPI) Services. These services utilise advanced algorithms to match the deceased person’s fingerprints against extensive databases which include those managed by the Departments of Homeland Security and Defense.

While the Aadhaar Act’s provisions on core biometric information serve a crucial role in protecting privacy, there is a compelling case in re-evaluating these restrictions in specific contexts, such as identifying a deceased person. Providing the police with access to a deceased person’s core biometric information, strictly based on a first information report (FIR), cannot be said to violate any constitutional norms.

Such disclosure, after verification of the FIR registered regarding the unidentified body under Section 194 of the Bharatiya Nagarik Suraksha Sanhita (earlier Section 174 of the Code of Criminal Procedure and which deals with police inquiry when information is received regarding unnatural deaths) should not, ideally, require a High Court order (as required by Section 33 of the Act). It can be on the order of the jurisdictional judicial magistrate. This reduces the burden on the higher judiciary in handling cases where access does not raise concerns about violations of privacy. Through well-defined and legally sound mechanisms, this approach ensures the dignity of both the living and the deceased.

Tracing the identities of the deceased using all available legal means is not just a practical necessity for law enforcement agencies aiming to uphold public safety or a way to provide closure to grieving families. It is a constitutional imperative. It is rooted in the right to life, which extends beyond mere animalistic existence. The law must safeguard this right for all individuals, particularly for those from poor, marginalised, and socially disadvantaged backgrounds, who already face unequal access to the criminal justice system.

source the hindu