A UNIQUE DILEMMA

AAD­HAAR IS LE­GALLY VALID BUT THERE ARE NOW LIM­ITS ON ITS IN­DIS­CRIM­I­NATE USE. THE SUPREME COURT VER­DICT HAS ALSO VAL­I­DATED CON­CERNS OVER DATA PRO­TEC­TION AND PRI­VACY

India Today - - SPECIAL REPORT MAYAWATI - By Kaushik Deka

IF YOU ARE PART OF THE WORK­FORCE THAT PAYS in­come tax, you must have an Aad­haar num­ber. If you are not fi­nan­cially sound/ so­cially back­ward and need to ac­cess gov­ern­ment wel­fare schemes, you must show the 12-digit unique iden­tity num­ber. Even if you don’t be­long to ei­ther of these cat­e­gories, you will need a PAN (Per­ma­nent Ac­count Num­ber) for fi­nan­cial trans­ac­tions ag­gre­gat­ing over Rs 2.5 lakh a year. And your PAN must be linked to your Aad­haar num­ber.

In other words, if you live a life of rel­a­tive priv­i­lege, and even if you don’t and de­pend on gov­ern­ment wel­fare schemes, you need Aad­haar. This is a prac­ti­cal read­ing of the Septem­ber 26 Supreme Court ver­dict on the con­sti­tu­tional va­lid­ity of the Aad­haar (Tar­geted De­liv­ery of Fi­nan­cial and Other Sub­si­dies, Ben­e­fits and Ser­vices) Act, 2016. While up­hold­ing its va­lid­ity, the five-judge con­sti­tu­tional

bench of the Supreme Court struck down Sec­tion 57 of the Act, which al­lowed cor­po­rate en­ti­ties or even in­di­vid­u­als to de­mand Aad­haar for their goods or ser­vices. The apex court also struck down a cir­cu­lar is­sued by the Tele­com Reg­u­la­tory Au­thor­ity of In­dia (TRAI) in March 2017 man­dat­ing the link­ing of mo­bile num­bers to Aad­haar. The Unique Iden­ti­fi­ca­tion Au­thor­ity of In­dia (UIDAI), the agency re­spon­si­ble for im­ple­ment­ing the Aad­haar scheme, has now asked tel­cos to sub­mit plans by Oc­to­ber 15 to close down their Aad­haar-based au­then­ti­ca­tion sys­tems in line with the Supreme Court or­der.

BUT PLANS ARE AL­READY AFOOT TO RE­STORE the pro­vi­sion to manda­to­rily link Aad­haar to mo­bile phones and bank ac­counts—Union fi­nance min­is­ter Arun Jait­ley has ad­vo­cated a leg­is­la­ture route for this. A PIL has also been filed in the Madras High Court seek­ing the link­ing of Aad­haar to elec­toral rolls and voter cards. The Elec­tion Com­mis­sion too has said that it has no ob­jec­tion to such a move.

Of course, one can still en­joy many priv­i­leges/ rights with­out an Aad­haar card, such as vot­ing. You can also ig­nore de­mands for the num­ber from pri­vate en­ti­ties such as banks (in­clud­ing na­tion­alised ones), phone com­pa­nies and schools and col­leges. But by mak­ing the Aad­haar-PAN link­ing and the re­quire­ment of Aad­haar while ap­ply­ing for a PAN manda­tory, the ver­dict has en­sured that your bank de­tails reach the UIDAI. In In­dia, a PAN is now com­pul­sory

to open a bank ac­count. While al­low­ing the gov­ern­ment to con­tinue link­ing Aad­haar with gov­ern­ment wel­fare schemes, the court went by the ar­gu­ment that it was serv­ing a much larger pub­lic in­ter­est. Read­ing out the ver­dict, Jus­tice Ar­jan Ku­mar Sikri said the bench was sat­is­fied that Aad­haar was a suit­able means to achieve a le­git­i­mate goal—preven­tion of leak­age and pil­fer­age. The court up­held Sec­tion 7 of the Aad­haar Act, which states that it is manda­tory for any gov­ern­ment scheme that draws out of the con­sol­i­dated fund of In­dia. This means that if you want to avail of ben­e­fits such as PDS ra­tions, LPG sub­sidy or en­ti­tle­ments un­der MNREGA, you have to fur­nish your Aad­haar num­ber or an Aad­haar en­rol­ment ID.

The pro­po­nents of Aad­haar of­ten ar­gue that it has re­duced leak­ages in the de­liv­ery of pub­lic ser­vices. Hail­ing the SC ver­dict, NITI Aayog CEO Amitabh Kant said: “Over Rs 90,000 crore is saved ev­ery year by plug­ging leak­ages in over 500 wel­fare schemes through the use of Aad­haar for au­then­ti­ca­tion.” Lawyer-au­thor Rahul Matthan, who rep­re­sented the in­ter­ests of pri­vate sec­tor com­pa­nies in the Aad­haar case, ar­gues that Aad­haar’s dig­i­tal in­fra­struc­ture has cost ben­e­fits. “The cost of KYC (know your cus­tomer) ap­proval for giv­ing a loan was Rs 1,000. But be­cause of Aad­haar-based eKYC, the cost is down to Rs 5,” he says.

How­ever, a study con­ducted by the same NITI Aayog in Puducherry, Chandi­garh and Dadra and Na­gar Haveli be­tween Jan­uary 2016 and March 2017 found that leak­ages in Di­rect Ben­e­fit Trans­fer through Aad­haar-seeded bank ac­counts has not been lower than the ear­lier es­ti­mates of leak­ages un­der the pub­lic dis­tri­bu­tion sys­tem.

Ac­cord­ing to de­vel­op­ment econ­o­mist Reetika Khera, a strong ad­vo­cate of data pri­vacy, Aad­haar has no role in plug­ging leak­ages or in the iden­ti­fi­ca­tion of le­git­i­mate ben­e­fi­cia­ries. In­stead, it has cre­ated an ecosys­tem of ex­clu­sion. Khera, in fact, ar­gues that the pri­mary pur­pose of Aad­haar was never to im­prove fi­nan­cial in­clu­sion or wel­fare ad­min­is­tra­tion as pro­jected. “Wel­fare was just the sug­ar­coat­ing to fa­cil­i­tate an essen­tially com­mer­cial project. These com­mer­cial ac­tiv­i­ties re­quired a dig­i­tal ID in­fra­struc­ture such as Aad­haar, which was built us­ing pub­lic money,” she wrote in a col­umn. To sub­stan­ti­ate her claim, she says that sev­eral “vol­un­teers” who helped build the Aad­haar in­fra­struc­ture are now us­ing the plat­form to build their busi­nesses.

The Supreme Court took note of one of her ar­ti­cles in which she had men­tioned a sur­vey of 900 house­holds in Jhark­hand, which proved that the manda­tory Aad­haar iden­ti­fi­ca­tion ex­cluded the most vul­ner­a­ble, such as old wi­d­ows who could not go to the shop to au­then­ti­cate them­selves, and led to great hard­ship for oth­ers. Al­though the bench headed by then chief jus­tice Di­pak Misra held that Aad­haar was meant to fa­cil­i­tate de­liv­ery of wel­fare ben­e­fits to the marginalis­ed sec­tions, it also sent a warn­ing to the gov­ern­ment: “In the con­text of the se­ri­ous griev­ance of fi­nan­cial ex­clu­sion, the court di­rects that no in­di­vid­ual should be ex­cluded from the re­ceipt of wel­fare en­ti­tle­ments, such as food­grains, for want of an Aad­haar num­ber.”

But the big­ger worry for the pe­ti­tion­ers, who had chal­lenged the con­sti­tu­tional va­lid­ity of the Aad­haar Act, is the Aad­haar ar­chi­tec­ture, which en­ables a com­pre­hen­sive sur­veil­lance by the gov­ern­ment. The pe­ti­tion­ers ar­gued that the Aad­haar Act vi­o­lated the fun­da­men­tal right to pri­vacy, which the Supreme Court had up­held in 2017.

The ar­chi­tec­ture of the Aad­haar project con­sists of a

Cen­tral Iden­ti­ties Data Repos­i­tory (CIDR), which stores and main­tains au­then­ti­ca­tion trans­ac­tion data. Based on this ar­chi­tec­ture, it is pos­si­ble for gov­ern­ment au­thor­i­ties to track down the lo­ca­tion of the per­son seek­ing au­then­ti­ca­tion, ar­gued one of the pe­ti­tions. Econ­o­mist Jean Drèze says the court ver­dict does lit­tle to cur­tail the pow­ers Aad­haar gives the gov­ern­ment to link mul­ti­ple data­bases and build an in­fra­struc­ture of sur­veil­lance. Se­nior ad­vo­cate Shyam Di­van ar­gued in the Supreme Court that the Aad­haar project was an elec­tronic leash to keep peo­ple un­der con­trol. “Cen­tralised and in­ter-linked data­bases also en­able track­ing, pro­fil­ing, lead­ing to self-cen­sor­ship, which en­dan­gers our free­dom,” says Khera.

IN­DEED, IF AAD­HAAR DOES FI­NALLY GET LINKED with bank ac­counts, mo­bile num­bers and voter IDs, the gov­ern­ment will be able to put cit­i­zens un­der a 360-de­gree sur­veil­lance, a fear of­ten ex­pressed by crit­ics of Aad­haar.

Matthan agrees with this, say­ing that the pos­si­bil­ity of con­nect­ing var­i­ous data­bases could threaten the pri­vacy of cit­i­zens. “The Aad­haar data it­self is not dan­ger­ous. What is dan­ger­ous is Aad­haar con­nected to all gov­ern­ment data­bases such as MNREGA, LPG dis­tri­bu­tion etc. Cur­rently, they are un­der sep­a­rate min­istries and it’s not easy to con­nect them. But if there is an ini­tia­tive to con­nect these, it must ad­here to the Right to Pri­vacy, as de­fined by the Supreme Court last year,” he says.

The court took note of these con­cerns but opined that data col­lec­tion by Aad­haar was min­i­mal and served a much larger pub­lic in­ter­est. It, how­ever, pro­vided par­tial relief to the com­plainants by strik­ing down the pro­vi­sion that al­lowed the ar­chiv­ing of au­then­ti­ca­tion records—wher­ever a per­son used Aad­haar to prove his iden­tity—for five years. Such records can now be kept only for six months. The court also banned stor­age of meta­data of trans­ac­tions by in­di­vid­u­als. This means the UIDAI can­not col­lect data sets and mine it for more data or anal­y­sis. The SC also struck down Sec­tion 33(2) of the Aad­haar Act, which al­lowed shar­ing of data with se­cu­rity agen­cies on grounds of na­tional se­cu­rity. Sec­tion 47 of the Act, which al­lowed only the gov­ern­ment to com­plain in case of theft of Aad­haar data, was also re­voked. Now in­di­vid­u­als too can file a com­plaint. The Supreme Court also asked the Cen­tre to bring a ro­bust law for data pro­tec­tion as soon as pos­si­ble.

The gov­ern­ment is cur­rently ex­am­in­ing the draft per­sonal data pro­tec­tion bill 2018, sub­mit­ted in July by the Jus­tice B.N. Srikr­ishna-headed ex­pert panel. One of the strong­est crit­i­cisms against the draft bill has been that it pro­poses strin­gent mea­sures against data pri­vacy vi­o­la­tions by pri­vate play­ers but goes soft on pos­si­ble breaches by gov­ern­ment. Ac­cord­ing to Sm­riti Parsheera, con­sul­tant, Na­tional In­sti­tute of Pub­lic Fi­nance & Pol­icy, the pro­posed bill needs strength­en­ing when it comes to data ac­cess by in­tel­li­gence and law en­force­ment agen­cies. “There is a dis­con­nect be­tween what the re­port is say­ing and how much of it is re­flected in the bill. For in­stance, in the dis­cus­sions on ac­cess to data by en­force­ment and in­tel­li­gence agen­cies, the re­port em­phat­i­cally states that cur­rent sys­tems are in­suf­fi­cient and we need re­forms like prior ju­di­cial re­view for au­tho­ris­ing sur­veil­lance ac­tiv­i­ties. This think­ing, how­ever, has not been trans­lated into the draft law,” she says.

Jus­tice Srikr­ishna recog­nises the dan­gers of state sur­veil­lance and has rec­om­mended that the gov­ern­ment pass a law on ju­di­cial su­per­vi­sion of ex­ec­u­tive ac­tion for sur­veil­lance. “The idea be­hind the pro­posal to add par­lia­men­tary ap­proval for such sur­veil­lance with an ex­piry term of six months is to in­clude the three legs of democ­racy,” says Matthan.

He then points to the big­gest flaw in the pro­posed pri­vacy law—there is no penalty on the gov­ern­ment for vi­o­lat­ing pri­vacy pro­vi­sions. Per­haps such im­punity is what has en­cour­aged the gov­ern­ment to vi­o­late Supreme Court or­ders re­lated to Aad­haar as well. For in­stance, de­spite an SC direc­tive in 2015 re­strict­ing manda­tory sub­mis­sion of Aad­haar to five wel­fare schemes, the Naren­dra Modi gov­ern­ment has linked it to at least three dozen wel­fare pro­grammes. And now the court has had to warn the gov­ern­ment not to ex­clude those who don’t have Aad­haar from wel­fare schemes since there is still no ar­chi­tec­ture and guide­lines in place to pro­vide for them.

EYE SPY...A UID bio­met­ric en­rol­ment cen­tre in Pune

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