Aadhaar

The UIDAI has taken two successive governments in India and the entire world for a ride. It identifies nothing. It is not unique. The entire UID data has never been verified and audited. The UID cannot be used for governance, financial databases or anything. It’s use is the biggest threat to national security since independence. – Anupam Saraph 2018

When I opposed Aadhaar in 2010 , I was called a BJP stooge. In 2016 I am still opposing Aadhaar for the same reasons and I am told I am a Congress die hard. No one wants to see why I oppose Aadhaar as it is too difficult. Plus Aadhaar is FREE so why not get one ? Ram Krishnaswamy

First they ignore you, then they laugh at you, then they fight you, then you win.-Mahatma Gandhi

In matters of conscience, the law of the majority has no place.Mahatma Gandhi

“The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.” Article 21 of the Indian constitution refers to the right to life and liberty -Attorney General Mukul Rohatgi

“There is merit in the complaints. You are unwittingly allowing snooping, harassment and commercial exploitation. The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a court for the purpose of criminal investigation.”-A three judge bench headed by Justice J Chelameswar said in an interim order.

Legal scholarUsha Ramanathandescribes UID as an inverse of sunshine laws like the Right to Information. While the RTI makes the state transparent to the citizen, the UID does the inverse: it makes the citizen transparent to the state, she says.

Good idea gone bad
I have written earlier that UID/Aadhaar was a poorly designed, unreliable and expensive solution to the really good idea of providing national identification for over a billion Indians. My petition contends that UID in its current form violates the right to privacy of a citizen, guaranteed under Article 21 of the Constitution. This is because sensitive biometric and demographic information of citizens are with enrolment agencies, registrars and sub-registrars who have no legal liability for any misuse of this data. This petition has opened up the larger discussion on privacy rights for Indians. The current Article 21 interpretation by the Supreme Court was done decades ago, before the advent of internet and today’s technology and all the new privacy challenges that have arisen as a consequence.Rajeev Chandrasekhar, MP Rajya Sabha

“What is Aadhaar? There is enormous confusion. That Aadhaar will identify people who are entitled for subsidy. No. Aadhaar doesn’t determine who is eligible and who isn’t,” Jairam Ramesh

But Aadhaar has been mythologised during the previous government by its creators into some technology super force that will transform governance in a miraculous manner. I even read an article recently that compared Aadhaar to some revolution and quoted a 1930s historian, Will Durant.Rajeev Chandrasekhar, Rajya Sabha MP

“I know you will say that it is not mandatory. But, it is compulsorily mandatorily voluntary,” Jairam Ramesh, Rajya Saba April 2017.

August 24, 2017: The nine-judge Constitution Bench rules that right to privacy is “intrinsic to life and liberty”and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution

"Never doubt that a small group of thoughtful, committed citizens can change the World; indeed it's the only thing that ever has"

“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” -Edward Snowden

In the Supreme Court, Meenakshi Arora, one of the senior counsel in the case, compared it to living under a general, perpetual, nation-wide criminal warrant.

Had never thought of it that way, but living in the Aadhaar universe is like living in a prison. All of us are treated like criminals with barely any rights or recourse and gatekeepers have absolute power on you and your life.

Announcing the launch of the#BreakAadhaarChainscampaign, culminating with events in multiple cities on 12th Jan. This is the last opportunity to make your voice heard before the Supreme Court hearings start on 17th Jan 2018. In collaboration with @no2uidand@rozi_roti.

UIDAI's security seems to be founded on four time tested pillars of security idiocy

1) Denial

2) Issue fiats and point finger

3) Shoot messenger

4) Bury head in sand.

God Save India

Sunday, May 20, 2018

13544 - Does the laudable purpose behind Aadhaar justify its irresponsible implementation? - First Post


May 14, 2018 20:39 PM IST

As the marathon battle over Aadhaar reaches its culmination, of which the final hearings alone span 38 days over a 4-month period, the Supreme Court is now deliberating on its constitutionality. During the course of the hearings, the Supreme Court expressed concerns with several features of Aadhaar while also expressing support for other features, such as preventing the dissipation of social welfare benefits. The final outcome of the case, thus, is hard to predict, though at the very least, key issues like exclusion can be expected to be dealt with.

Throughout the hearings, the petitioners argued vehemently against Aadhaar, and the State argued with equal force to justify it. The State has been approaching the entire Aadhaar project with a single focus, to establish a mandatory, nationwide digital identity system. This determined focus has resulted in a recurrent theme brought out during the hearings: A lack of responsibility with which the Aadhaar scheme has been implemented.

Issues with a large-scale digital identity system
A system of such a large scale, for a country like India with over a billion people, naturally, will be plagued with problems. A reasonable approach, then, would be to constantly work towards resolving the issues faced at multiple levels of the Aadhaar ecosystem, be it to deal with exclusion at the ground level or security hacks and leaks of Aadhaar and related data from various sources. Instead, what has actually been seen is a determined push to make Aadhaar mandatory while resorting to complete denial whenever issues with Aadhaar are brought up.

Issues with the legislative backing to Aadhaar
To roll out a process like Aadhaar, one with large-scale implications for people’s rights, the first responsibility of the State is to uphold the rule of law — to ensure legislative backing. Yet, Aadhaar was rolled out under an administrative order without any such backing. Thereafter, the Aadhaar Act was enacted in violation of a Supreme Court order directing that Aadhaar be kept voluntary and in violation of constitutional processes by passing it as a money bill.
Each of these are an issue before the Supreme Court. The Court has questioned, among other things, the lack of informed consent while collecting biometrics prior to 2016, whether the 2016 Act can justify the lack of such safeguards through retrospective validation under Section 59, and further whether a Section like 57, which allows Aadhaar to be made mandatory by anyone, could have any place in a money bill.

Rules and notifications on the use of Aadhaar
In addition to the Section 57 issue, which questions all notifications issued thereunder, the same issue can be seen with the rules and notifications behind the uses of Aadhaar. A key factor that came out in the final hearings was that of the State finally admitting that mandatory Aadhaar-SIM linking had never been directed by the Supreme Court in the Lokniti Foundation case. The order was misinterpreted and people were told that what was, in reality, a governmental decision to mandate Aadhaar-SIM linking, was a Supreme Court order.

JAN 24, 2018
The arguments against Aadhaar before the Supreme Court continued today, with senior counsel Shyam Divan presenting arguments against the Aadhaar system

Reuters
FEB 2, 2018
Issues raised on day 6 included the unconstitutionality caused by the centralization of data from the Aadhaar system, the legal basis of Aadhaar, and the veracity of the UIDAI and governmental claims on the savings through Aadhaar.


Reuters
FEB 7, 2018
The Bench observed that this exclusion caused by Aadhaar is a ground for violation of Article 14, the right to equality, indicating grounds for its unconstitutionality.

LOADING

FEB 9, 2018
The petitioners argued that there can be a voluntary ID card system without authentication data that would not be used to collect data.

LOADING

FEB 20, 2018
For the Aadhaar Act to be constitutional, the petitioners argued that it firstly needs to meet the tests of substantive and procedural reasonableness.

LOADING

FEB 23, 2018
The petitioners first continued with their arguments since Day 11 on dignity as a protected facet of Article 21 of the Constitution

LOADING

FEB 23, 2018
On Day 13 of the Aadhaar hearings yesterday, senior counsel Gopal Subramaniam concluded his arguments for the petitioners.

LOADING

MARCH 07, 2018
On Day 14 of the Aadhaar hearings, senior counsel Arvind Datar commenced his arguments on behalf of the petitioners.

LOADING

MARCH 8, 2018
On Day 15 of the Aadhaar hearings, senior counsel Arvind Datar concluded his arguments for the petitioners, and senior counsel P. Chidambaram commenced his.

LOADING

MARCH 15, 2018
Senior counsel KV Vishwanath commenced his first argument on Section 59 that grants validity to all the acts of the government prior to the passing of the Aadhaar Act in 2016

LOADING

MARCH 16, 2018
The issues raised included that the entire Aadhaar project is beyond the Act’s objectives, the excessive data collection under KYR+ and State Resident Data Hubs (SRDHs)

LOADING

MARCH 21, 2018
Issues raised were lack of proportionality and purpose, limitation with the large-scale collection and retention of data under the Aadhaar Project.

LOADING

MARCH 22, 2018
The primary argument was on how the benefits of Aadhaar through providing a right to life with dignity to the poor, outweighed the right to privacy.

LOADING

MARCH 23, 2018
Discussing the set up of the Aadhaar system, he stated that 9000 crores had been invested by the government in setting up and operationalizing the UIDAI

LOADING

MARCH 28, 2018
The issue of data breaches from points other than the CIDR was also raised. Also, the Bench refused to extend the deadline for Section 7 benefits.

LOADING

APRIL 4, 2018
The Aadhaar Act, the Attorney General argued, is a just, fair, and a reasonable law. The motive of Aadhaar was in the larger public interest

LOADING

APRIL 6, 2018
The Attorney General argued that the Aadhaar regime had to be assessed based on what it was, and not on hypothetically what it could be.

LOADING

APRIL 11, 2018
Additional Solicitor General Tushar Mehta commenced his arguments on the Aadhaar-PAN linkage under Section 139AA of the Income Tax Act.

LOADING

APRIL 12, 2018
Additional Solicitor General Tushar Mehta continued his arguments on the Aadhaar-PAN linkage and commenced his arguments on Aadhaar-Bank Account linkage

LOADING

APRIL 13, 2018
Senior counsel Rakesh Dwivedi commenced his arguments, arguing that the surveillance possibilities discussed by the petitioners were ridiculous and mere rhetoric.

LOADING

APRIL 18, 2018
The Bench, while discussing apprehensions of misuse of data, observed that a blinkered view of reality could not be taken while dealing with Aadhaar.

LOADING

APRIL 19, 2018
The Bench observed that the lack of choice with the means of identification indicated a lack of proportionality with the restriction imposed.

LOADING

APRIL 20, 2018
Further, he discussed the reasonable expectation of privacy with respect to the data collected under the Aadhaar Act.

LOADING

APRIL 25, 2018
Returning to the issue of metadata, he argued that Aadhaar only involved the collection of limited technical data. He argued that this was needed to exercise control over the REs.

LOADING

APRIL 26, 2018
The Aadhaar project had the support of two governments, since it had been commenced when the Congress was in power.

LOADING

APRIL 27, 2018
Senior counsel Neeraj Kishan Kaul on behalf of the Digital Lenders Association of India and others also argued that the private sector should be allowed to use Aadhaar.

LOADING

MAY 3, 2018
The Attorney General then continued his arguments on the money bill issue, arguing that Aadhaar was, at its core, a money bill and that Section 57 was just an ancillary provision.

LOADING

MAY4, 2018
Shyam Divan argued that the State’s expert report conceded that location data could be tracked via Aadhaar, thus establishing surveillance in a fundamental form.

LOADING

MAY 10, 2018
The senior counsel Gopal Subramaniam commenced his rejoinder, arguing that the State cannot place the burden of its failures on the individual.





Challenges to the Aadhaar Act and its surveillance implications raised before SC


Petitioners argue on centralisation of data and challenge Aadhaar’s claims on savings


Petitioners argue that Aadhaar is an RTI Act for the State and violates right against self-incrimination


Petitioners argue for a voluntary ID card system that does not collect user data


Aadhaar is architecturally unconstitutional, argue the petitioners


Petitioners argue that Aadhaar violates dignity by objectifying and depersonalizing an individual


Petitioners seek compensation for starvation deaths and extension of March 31st deadline


Mandatory linking of Aadhaar with bank accounts violates the 'Right to Equality', argue petitioners


Day 15 saw arguments on Aadhaar as a money bill, interim orders for NEET registrations were also passed


De facto mandatory nature of Aadhaar results in unconstitutional and indirect coercion, argue petitioners


Entire Aadhaar project is beyond the stated objectives of Aadhaar Act, argue petitioners


Petitioners conclude their arguments on 'the number of the beast' Aadhaar, highlighting various issues


Political liberties cannot be foregone for economic and social justice, states the Bench


UIDAI’s presentation discusses Aadhaar enrolment, updation and authentication processes in detail


Supreme Court expresses concerns with data breaches, Aadhaar security and profiling


Petitioners question UIDAI on verification of residency requirement, de-duplication rejections and authentication failures


Bench criticises the argument that Aadhaar can prevent bank frauds and terrorists from acquiring mobile numbers


Additional Solicitor General argues Aadhaar-PAN linkage enables deduplication, prevents fraud and widens the tax base


Not necessary to prove least possible invasion of privacy, argues Additional Solicitor General


Senior counsel calls surveillance possibilities as mere rhetoric, says fingerprint data is only relevant for palmistry


Counsel argues that Aadhaar is more secure than a data protection law, SC disagrees


Supreme Court questions why both right to privacy and right to food cannot be secured under the Constitution


Senior counsel Rakesh Dwivedi argues that balancing between rights is a symbol of justice


Senior counsel Rakesh Dwivedi argues that the UIDAI is constantly improving and upgrading its systems


Aadhaar has the support of two governments, argues the State


The Act is a well balanced law of which a few provisions should be struck down, argues advocate Gopal Sankaranarayanan


Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision


People must have a choice in the unstoppable march towards technology, argue petitioners


Is the Aadhaar Act compliant with the first five words of the Constitution, 'We the People of India', asks senior counsel


Still further, the petitioners in the case pointed to the contradiction between the amended Prevention of Money Laundering Act 2002 (PMLA) rules mandating Aadhaar to open a new bank account and the (former) RBI rules allowing 6 KYC documents to open a bank account. Thereafter, during the pendency of this case, the new RBI notification mandating Aadhaar-based eKYC was issued. The impropriety of doing so was, in fact, also pointed out to the Court by the petitioners.

Lack of verification during Aadhaar enrolment
The Unique Identification Authority of India (UIDAI) made a presentation in the Supreme Court which was designed to instil a sense of trust and security with Aadhaar, its systems and processes. However, certain facts revealed over the course of the presentation led to the opposite result. The questionnaire, for instance, revealed that no verification was done of the people enrolling with Aadhaar — be it of the 182 days residence requirement, or a check on whether they are illegal immigrants or not (official answers of the UIDAI are here). Enrolment is solely done on the strength of the documents provided, and the residence requirement is established through a mere declaration on the enrolment form.

A woman waits for her turn to to enrol for the Unique Identification (UID) database system, Aadhaar, at a registration centre in New Delhi, India. Image: Reuters
These points lend weight to the petitioner’s argument that Aadhaar is but a self-declaration form of identification and a matching service where biometrics provided at the time of enrolment are matched to those provided at the time of authentication. Aadhaar, clearly, only ensures this ‘matching’ of biometrics, but otherwise does not take any responsibility for the identity of the person. Such an unverified identity system can hardly be, as Aadhaar is advertised to be — the most ‘trusted’ and ‘secure’ digital identity.
Several other factors were brought to light with the enrolment process itself, be it with the involvement of private persons, the lack of monitoring of such persons and the resultant blacklisting of 49,000 enrollers and related data breaches. The spike of Aadhaar-related leaks, hacks and scams are also just another factor, all of which the State is refusing to take responsibility for, asserting only the security of the biometric information stored in the CIDR.

Aadhaar-based exclusion during use of Aadhaar
While considering the issues arising with the use of Aadhaar, Aadhaar-based exclusion is the most obvious issue, an issue the Supreme Court has clearly expressed its concerns with, terming it as a violation of the right to equality. Despite the several media reports of Aadhaar-based exclusion, including exclusion-based deaths, and further, despite affidavits filed before the Supreme Court in this case itself, the State has continued to deny Aadhaar-based exclusion on the grounds that the law provides for exception-handling mechanisms (Section 7), and that not one person has filed a complaint before the UIDAI.
A very simple example of the authentication issues faced by people, which leads to exclusion, was given by Justice DY Chandrachud, among the judges hearing the case, who cited a personal example where his mother, who suffers from Alzheimer’s, had to have a bank officer come over every month for authentication, for her to get her pension. Aadhaar-based denial of services was also brought to the Court’s notice, whether a school child would be denied admission for lack of Aadhaar, or a pregnant woman would be denied admission to a hospital for delivery.

When you think of the millions of Indians facing similar issues, the gravity of the problem, even if it is 1 percent failure in authentication rates, hits home. So when the UIDAI mentioned in its presentation before the Supreme Court that the authentication failure rate is 6 percent for fingerprint authentication, it means that 3.6 crore authentication attempts (individual transactions) have failed. Despite all these factors, the denial of exclusion through quoting laws and the repeated statement that ‘no one is being denied due to Aadhaar’, is only evidence of the State’s failure to responsibly implement Aadhaar or take on responsibility for its shortcomings; to ensure that no person suffers on account of this new scheme.
Laudable purpose behind Aadhaar doesn’t justify irresponsible implementation
Over the course of the hearing, several such factors pointing to the lack of responsibility with the implementation of Aadhaar were brought out. To justify all of these shortcomings, the State’s main assertion is the "highly laudable" and "essential purpose" behind Aadhaar — to ensure the targeted delivery of benefits, subsidies and services of the State. Emphasis was further laid on the time, effort and investment (to the tune of Rs 9,000 crores) which had gone into Aadhaar.
The issue is that no matter how laudable the objective of the State, the State’s job doesn’t end there. The State needs to ensure that the setup of the system to achieve this objective, and thereafter the impact of this system, are legal, proportional and those intended. Where the system does not work for the people’s benefit, the State has the further responsibility of updating, reviewing, redoing, or even doing away with such a project. The State is not serving its people if it sets up a system for their benefit and then pushes ahead with it regardless of its actual effects on them. This is thus, among the many questions that the Supreme Court will have to deliberate on.
The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.


Updated Date: May 14, 2018 20:39 PM