Aadhar Card and Right to Privacy – Can They Co-Exist?

In 2009, the government of India launched a new identification program that has gone on to become the largest biometric database in the world. The program, known as Aadhaar, has collected the names, addresses, phone numbers—and perhaps more significantly, fingerprints, photographs, and iris scans—of more than 1 billion people. In the process, Aadhaar has taken on a role in virtually all parts of day-to-day life in India, from schools to hospitals to banks, and has opened up pathways to a kind of large-scale data collection that has never existed before. The Indian government views Aadhaar as a key solution for a myriad number of societal challenges, but critics see it as a step toward a surveillance state. Now, the Aadhaar experiment faces a significant threat from the Indian Supreme Court.

Privacy had emerged as a contentious issue while the apex court was hearing a batch of petitions challenging the Centre’s move to make Aadhaar mandatory for availing government schemes. With recent Supreme Court order affirming that privacy is a fundamental right, one of the central questions that came up there was how does the government view the fundamental right to privacy and what does this mean for the government’s Aadhaar Programme?

What is Aadhaar?

Aadhaar is a 12 digit unique-identity number issued to all Indian residents based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established by the Government of India, under the Ministry of Electronics and Information Technology, under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.

To obtain an Aadhaar number, an individual has to submit his,

(i)            biometric (photograph, fingerprint, iris scan)

(ii)           demographic (name, date of birth, address) 

The Unique Identification Authority (UID) may specify other biometric and demographic information to be collected by regulations

Is it mandatory to get Aadhar?

    Any individual, irrespective of age and gender, who is a resident of India, may voluntarily enroll to obtain Aadhaar number.

It is not mandatory to enroll for Aadhar.

Aadhar was primarily introduced for direct transfer of subsidies into citizens bank account.

But now the government has widened the scope of  Aadhar. Now, there are many compulsions to link Aadhar to Bank Account, link Aadhar to Mobile Number, link Aadhar to PAN etc.

Is Aadhaar an Identity Proof or Address Proof or Both?

    Aadhaar card is issued after recording and verifying every Indian citizen’s details including biometric and demographic data.

Aadhaar may be used as a primary identifier to roll out several Government welfare schemes and programmes for effective service delivery thereby promoting transparency and good governance.

Aadhar is accepted as a proof of address by Securities and Exchange Board of India (SEBI) for investing in the stock market

Will Aadhar replace existing identity proofs?

    The existing identification documents like PAN, passport, driving license etc. won’t get replaced by Aadhaar. However, it can be used as a single identification document.

Aadhar number is unique and robust enough to eliminate a large number of duplicate and fake identities in government and private databases.

    An individual need to enroll for Aadhaar only once and after de-duplication, only one Aadhaar shall be generated, as the uniqueness is achieved through the process of demographic and biometric de-duplication.

What are the benefits of Aadhar?

  Demographic and development planning: Enables valuable anonymized demographic data to help development planning at State, District, and local government levels.

Preventing leakages: Welfare programs, where beneficiaries need to be confirmed before service delivery, also stand to benefit from UIDAI’s verification service. Examples of such usages include subsidized food and kerosene delivery to Public Distribution System (PDS) beneficiaries. This usage would ensure that services are delivered to the right beneficiaries only.

Aadhaar as an identifier: People belonging to marginalized sections of the society often do not have a valid proof of identity. As a result, they miss out on availing social benefits provided by the government. Aadhaar has been successful in solving this problem. One of the quintessential properties of Aadhaar is its uniqueness. It is an identification that a person can carry for a lifetime and potentially use with any service provider thus, fundamentally becoming a pro-poor identification infrastructure.

Black Money: Use of Aadhaar card in real estate transaction could provide the trail of transactions and aid in the crackdown of black money

 JAM trinity: The JAM Number Trinity- Jan DhanYojana, Aadhaar, and Mobile numbers- allows the state to offer this support to poor households in a targeted and less distortive way.

It can be used to monitor development related parameters in such critical sectors as healthcare, education, etc. This can also facilitate the development of electronic applications to bridge any gaps observed.

It can help to map skilled manpower, based on the vocational training acquired by the individual, to suitable job vacancies/ skill requirements of the State

It enables instant paperless bank account opening, instant issuance of insurance and acts as a permanent financial address

It provides a single view of beneficiary data and information, aiding in streamlining policy decisions for the state

Social benefits delivery services: Enables State Governments to directly transfer benefits to beneficiary accounts under various schemes.

Beneficiary Identification: Helps in sanitizing the State’s/Department’s databases and uniquely identifying beneficiaries by removing ghost/duplicate identities

Issues with Aadhar card

·         Services Denied: Many instances occurred in which government and its agencies have been found insisting on producing Aadhar number as a precondition to avail benefits or public services

·   Exclusion: Labourers and poor people, the primary targets of the Aadhar process, often do not have clearly defined fingerprints because of excessive manual labor. Even old people with “dry hands” have faced difficulties. Weak iris scans of people with cataract have also posed problems. In several cases, agencies have refused to register them, defeating the very aim of inclusion of poor and marginalized people.

·   Consent: No informed consent about the uses to which the data will be subjected

·   Exit Option: The absence of an exit option to get out of the UIDAI database

Privacy Concerns and violation of rights

·         No Statutory backing: The UIDAI and the Aadhar project are still functioning on the basis of an executive action since it was set up. The Supreme Court, while delivering judgments in various cases relating to state surveillance and privacy has always emphasized that any action of the government must be backed by a formal statute or legislation.

·   Wide Mandate: UIDAI has a wide mandate which includes defining the usage and applicability of Aadhaar for the delivery of various services. Giving so much power to a body which has no legislative sanction is, indeed, unprecedented and extremely worrying.

·   Lack of accountability: The UIDAI also lacks accountability to Parliament if there is a failure in the system and someone suffers in consequence.

·   Private Players: There are many private players involved in the whole chain of registering for and generation of Aadhaar numbers before the database finally goes to the government-controlled Central Identities Data Repository (CIDR).

·   ‘Seeding’: This is about the introduction of the Aadhar number into different databases. Once the number is needed in various databases, it makes convergence of personal information remarkably simple. So, if the number is in the gas agency, the bank, the ticket, the ration card, the voter ID, the medical records and so on, the state, as also others who learn to use what is called the ‘ID platform’, can ‘see’ the citizen at will. 

Violation of rights: The critics of the Aadhaar has always maintained that the UIDAI might share the biometric information of people with other government agencies thereby violating people’s right to privacy. They also thought that using the biometric data, people might be singled out, tracked, harassed and have their rights violated

Right to Privacy in India

 Two Constitution Bench judgments — Sharma (1954), an eight-judge decision, and Kharak Singh (1962), a six-judge judgment — held that the Right to Privacy was not a fundamental right.

 In Govind vs. State of Madhya Pradesh (1975), the Supreme Court held that “many of the fundamental rights of citizens can be described as contributing to the Right to Privacy”. After this, the approach to the interpretation of fundamental rights had undergone a fundamental change. The scope of article 21 of Constitution was broadened through subsequent judgments.

However, in Govind, the Bench clarified that the Right to Privacy was not an absolute right and must be subject to the restriction on the basis of compelling public interest

In Maneka Gandhi (1978), the SC held that any law and procedure authorizing interference with personal liberty and Right of Privacy must also be right, just, and fair, and not arbitrary, fanciful, or oppressive.” 

In R Rajagopal vs State of Tamil Nadu (1994), Supreme Court held that the Right to Privacy is implicit in the right to life and liberty guaranteed by Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. 

From these rulings, it can be inferred that though the Constitution does not specify ‘right to privacy’ as a fundamental right, the subject has evolved considerably in India, and privacy is now seen as an ingredient of personal liberty.

Why right to Privacy is so important

ü  The right to dignity which inheres in each individual as a human being is incomplete without the right to privacy and reputation.

ü The ability to make choices and decisions autonomously in the society free of surrounding social pressure, including the right to vote, freedom of religion — all of these depend on the preservation of the “private sphere".

ü The right to personal liberty of human is unsubstantial without adequate protection for the right to privacy

ü Modern Technology: The advent of modern tech tools has made the invasion of privacy easier. Also, several national programmes and schemes are using computerized data collected from citizens which is vulnerable to theft and misuse

As an alternative to the collection of biometric information, few experts have suggested shifting to smart cards. How will this help?

ü Biometrics allows for identification of citizens even when they don’t want to be identified. Smart cards which require pins, on the other hand, require the citizens’ conscious cooperation during the identification process.

ü Once smart cards are disposed nobody can use them to identify. 

ü  If the UIDAI adopts smart cards, the centralized database of biometrics can be destroyed just like the UK government did in 2010. This would completely eliminate the risk of the foreign government, criminals and terrorists using the breached biometric database to remotely, covertly and non-consensually identify Indians.

ü Smart cards based on open standards allow for decentralized authentication by multiple entities and therefore eliminates the need for a centralized transaction database.

Conclusion:

This century comes with certain risks. Therefore, we need to take a level-headed approach and ensure that ample safeguards are put in place for data protection and privacy. The government should recognize both the need for Aadhaar and the need for stringent rules concerning access to and security of citizens’ biometric data, in order to preserve their privacy. The very foundation of Aadhaar must be reconsidered in the light of the privacy judgment.