Aadhaar is meandering in a legal maze

ALI Chougule

The ambitious programme to provide a unique 12-digit identification number to 1.3 billion Indian citizens, Aadhaar has been a matter of strident and litigious debate. Currently, a five-judge Supreme Court (SC) bench is hearing a collective case over a bunch of 22 petitions challenging the constitutional validity of the 2016 Aadhaar Act on the ground that it violated privacy rights of citizens. Last week, the five-judge bench extended the March 31, 2017, deadline for linking Aadhaar to mobile phones, bank accounts, tatkal passports etc, till it delivers its judgement. Earlier in July last year, a nine-judge constitution bench had held that the right to privacy was a fundamental right protected under Article 21. This was seen as a major blow to the government’s push for Aadhaar.

Since July 2017, privacy has been at the centre of Aadhaar debate. According to legal experts, there are three aspects to privacy issue: bodily integrity, information privacy and threat of state surveillance. Whether the act of collecting finger prints and iris scans violates the bodily integrity of citizens, and therefore, the fundamental right to privacy is an important question before the SC. Equally crucial argument is whether the Aadhaar Act violates the right to informational selfdetermination or informational privacy. An important aspect of informational privacy is whether citizens know what exactly is happening with their personal information and the manner in which the information shall be used. The third and forceful aspect of the privacy argument is that Aadhaar will enable the State to mount constant surveillance on citizens.

Apart from privacy issue, the necessity to have an Aadhaar card to avail benefits or otherwise is also a subject of litigious debate. In an attempt to make the Aadhaar an all-encompassing identity for authentication, the government has lately been adding a slew of welfare schemes and services to Aadhaar. The government has also made Aadhaar necessary for filing income tax returns. However, the apex court’s order of October 15, 2015, said that Aadhaar cannot be made mandatory for welfare schemes. The court has restricted the voluntary use of the card to six schemes and prohibited the government from making it mandatory for receiving any other benefit or service. The SC has consistently maintained that Aadhaar is voluntary and not mandatory and there is no compulsion to submit it for availing services.

To start with, the Aadhaar project was introduced as an optional 12-digit identification tool in January 2009. The optional nature of Aadhaar had come up for discussion when the National Identification Authority of India Bill, 2010, was introduced in parliament by UPA-2 government. The bill was referred to the standing committee on finance which raised concerns over Aadhaar’s security by giving an example of an ID project in the UK which was later abandoned due to high cost, untested technology and the ‘changing relationship between the state and citizens’. In response to the committee’s concerns, the government stated that while the UK ID card was mandatory, Aadhaar number is not mandatory. The government also clarified that the main aim of Aadhaar ‘is to enhance the delivery of welfare benefits and services’. Things took a different turn when the implementation of the project – in absence of a legislative backing – was challenged in the SC in November 2012. Since then, Aadhaar has remained mired in complex arguments in court.

Since September 2010, over 1 billion biometric ID cards have been issued. Speed was strategic and scaling things, as the then UIDAI chairman Nandan Nilekani had said in an interview, was critical to neutralise the opposition to Aadhaar. The biggest opposition to Aadhaar programme came from the current ruling dispensation: BJP and Narendra Modi, then Gujarat chief minister. Modi had alleged that the Aadhaar programme was a ‘bundle of lies and loot to the country’s treasury’. Post-2014 elections, both Modi and BJP did a U-turn to become its key crusaders. So, from a severely critical stand against Aadhaar before 2014 elections, the Modi-led BJP wants to replace every other identity with Aadhaar as the single monolithic identity for all Indians.

What makes Aadhaar unique from many other methods of identification – ration card, driving license, passport, PAN and voter ID card etc – is the 12-digit unique identity number that connects an individual to his or her address, demographic details and biometric information. This makes the opposition to mandatory use of Aadhaar on ground of privacy violation legally tenable, as Aadhaar gives the State too much information about individuals. Another credible argument against Aadhaar is the absence of stringent data and privacy protection system and legal provisions to deal with data theft and breach of privacy. However, even if one supports the idea of having a unique multi-purpose identity to weed out corruption and minimise inclusion and exclusion errors for various government welfare schemes, one can still question mandatory use of Aadhaar for the coercive manner in which it is being implemented and expanded to include several public and private services.

Aadhaar is intended to vastly improve financial inclusion and the administration of subsidies besides weeding out leakage and corruption, though there is no evidence that it has put a dent in corruption. There have been several reports of the poor and ordinary people being denied rations and other benefits due to either lack of Aadhaar or authentication-related problems. Having Aadhaar in itself does not guarantee access to government’s welfare benefits. So, what’s the rationale behind bringing those individuals in Aadhaar ambit when they are not recipients of any government welfare scheme?

One does not know what the SC verdict will be. Broadly speaking, there are two possibilities: either Aadhaar will be scrapped, or it will be saved. If Aadhaar is not junked, concerns over data security and privacy issue should be addressed adequately. However, if Aadhaar is saved, its use may be restricted to enhance delivery of welfare schemes, as originally intended. Given the many ways in which the Aadhaar system is broken, it should also be made voluntary again. Critics have warned about the danger of Aadhaar architecture becoming an instrument of mass surveillance and profiling of individuals in future. The court has also expressed its concern over it. Aadhaar has its advantages; but apart from the issue of its constitutional validity, there are other areas of concern as well.

The main aim of Aadhaar ‘is to enhance the delivery of welfare benefits and services’.