AAD­HAAR STAYS, WITH LIM­ITS ON ‘FUNC­TION CREEP’

India Today - - UPFRONT - By Kaushik Deka

Afive-judge bench of the Supreme Court, in an ea­gerly an­tic­i­pated ver­dict on Septem­ber 26, up­held by a ma­jor­ity of four to one the con­sti­tu­tional va­lid­ity of the Aad­haar Act, 2016. But the court ap­peared to also recog­nise that the pen­e­tra­tion of Aad­haar into ev­ery sphere of pub­lic ac­tiv­ity was ex­ces­sive, what is of­ten de­scribed as its ‘func­tion creep’. Among the sec­tions it struck down was 57 which per­mit­ted pri­vate en­ti­ties to de­mand Aad­haar data, in­clud­ing bio­met­ric data, in ex­change for their ser­vices.

The court re­fused to ac­cept that it was nec­es­sary for com­mer­cial banks or dig­i­tal wal­let com­pa­nies, Paytm for in­stance, to de­mand the Aad­haar de­tails of cus­tomers. Mo­bile ser­vice providers, too, can no longer de­mand to see Aad­haar iden­ti­fi­ca­tion or col­lect bio­met­ric de­tails be­fore dol­ing out SIM cards, though some 880 mil­lion bank ac­counts and 700 mil­lion mo­bile num­bers have al­ready been linked to Aad­haar. In­deed, the dis­sent­ing judge, D.Y. Chan­drachud, of­fered the view that all tele­com com­pa­nies should delete what Aad­haar data had been col­lected. The judges also agreed that chil­dren could not be de­nied ser­vices for lack of an Aad­haar card, nor could schools and ed­u­ca­tion boards link the card to ad­mis­sions and ex­ams.

De­spite the caveats about over­reach, the judges agreed in the ma­jor­ity that Aad­haar pro­vides a valu­able ser­vice, ex­tends an iden­tity, as Jus­tice Ar­jan Ku­mar Sikri noted, to even the most marginalised peo­ple in so­ci­ety. The court ac­cepted the govern­ment’s case that Aad­haar en­ables it to ef­fi­ciently de­liver wel­fare. Fi­nance min­is­ter Arun Jait­ley claimed that the link­ing of Aad­haar cards to di­rect ben­e­fit trans­fer (DBT) saved the govern­ment Rs 90,000 crore. But NITI Aayog con­cluded—in a study of DBT through Aad­haar-seeded bank ac­counts in the Union ter­ri­to­ries of Puducherry, Chandigarh and Dadra and Na­gar Haveli con­ducted be­tween Jan­uary 2016 and March 2017—that leak­ages were sim­i­lar to those es­ti­mated un­der the pub­lic dis­tri­bu­tion sys­tem.

Ac­cord­ing to the econ­o­mist Reetika Khera, “Aad­haar has not suc­ceeded in plug­ging leaks nor has it en­abled in­clu­sion in wel­fare pro­grammes.” In­stead, she says, “ex­clu­sion is built into the Aad­haar ecosys­tem.” She said the govern­ment’s own data shows a con­sid­er­able pro­por­tion of peo­ple don’t re­ceive their ben­e­fits. And the Supreme Court bench, headed by Chief Jus­tice Di­pak Misra, warned the govern­ment that “no in­di­vid­ual should be ex­cluded from the re­ceipt of wel­fare en­ti­tle­ments, such as food­grains, for want of an Aad­haar num­ber”.

For econ­o­mist Jean Drèze, “Ex­cept for Jus­tice Chan­drachud, the judges have missed the real threat Aad­haar poses to pri­vacy... the power Aad­haar gives the govern­ment to link mul­ti­ple data­bases and build an in­fra­struc­ture of sur­veil­lance.”

That said, the court did strike down Sec­tion 33(2) of the Aad­haar Act, which per­mit­ted data shar­ing on the grounds of na­tional se­cu­rity. Sec­tion 47 was also struck down, which al­lowed only the govern­ment to com­plain about the theft of Aad­haar data. And the SC did re­mind the govern­ment of the need for a ro­bust data pro­tec­tion law as soon as pos­si­ble.

Usha Ra­manathan, an­other vo­cal critic of Aad­haar, said only Jus­tice Chan­drachud had been sen­si­tive to the ways in which states can wield power over cit­i­zens. In his dis­sent­ing opin­ion, he ar­gued that by pass­ing the Aad­haar Act as a so-called money bill, the govern­ment had fraud­u­lently side­lined the Ra­jya Sabha and had, in fact, vi­o­lated the Con­sti­tu­tion. For now, though, the court has spo­ken. Aad­haar is here to stay. But an at­tempt has been made to cur­tail its in­flu­ence, to stop it be­com­ing a re­source for both govern­ment and cor­po­ra­tions to gather in­for­ma­tion on cit­i­zens. The Aad­haar num­ber, the Supreme Court ap­peared to be say­ing, ought to be a force for good, as it was in­tended, to im­prove the de­liv­ery of ben­e­fits to the needy, rather than a tool for the govern­ment to play Big Brother.

The ma­jor­ity ver­dict puts brakes on the un­tram­melled use of Aad­haar to gather in­for­ma­tion on all cit­i­zens

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