By: Ishaan Saha
India’s Aadhaar is the world’s largest biometric ID system. Linking biometric data to income tax returns, the scheme is now mandatory for all Indian residents. This article analyzes the Aadhaar scheme in the context of the right to privacy, and in particular, the fundamental right to silence.
There is a distinction in the law on the right to silence, between compelling a person to divulge her password to a digital device, as opposed to compelling a person to use her fingerprint to unlock the same device. In light of this distinction, Aadhaar could effectively render the right against self-incrimination illusory, as the biometric information already stored on the Aadhaar database could easily be used to access an individual’s digital information stored on her phone or computer protected by a fingerprint lock.
Comparing US law on the right to silence and its interface with digital technology with the Indian law on the issue, we see that the US position on the subject is incongruous to the fundamental rights envisaged under the Indian Constitution and also out of pace with the technological advancements of the day. Unless the right to silence comes of age and accommodates the technological challenges posed by biometric ID systems, the lacuna in the law which protects one’s right to refuse to divulge a password confined in her mind, while at the same time excluding from the ambit of protection, the use of one’s fingerprint or other biometric information to access the very same information stored on a hard drive, can be exploited to render the fundamental right to silence — which is often the last bastion of civil society — an abortive ideal.