India is enrolling infants and children in Aadhaar – but what about their consent?
Published Sep 19, 2016 · 10:30 am. Updated Sep 19, 2016 · 02:16 pm.
Within minutes of birth, children are being signed up for the contentious identification programme.
On September 7, Seema (name changed) became the youngest person in India to get an Aadhaar number, after she was enrolled within
five minutes of her birth in Khajuwala, Rajasthan.
The government’s biometric-based identification system, which assigns each citizen a unique number, covers 98% of India’s adult population, according to the latest figures. The coverage among children, however, is far less, and when taken into account, brings total enrolment to 82%
To plug this gap, the government has proposed to
link five child-specific schemes to Aadhaar. The inclusion of the mid-day meal scheme among others in this list means that for children in government schools, even getting a hot cooked lunch would be contingent on their biometrics.
Lifelong decision at infancy
Passed in March, the Aadhaar Act makes no distinction between the enrolment of infants (below five years old), children (aged 5 to 18) or adults.
This gives rise to two concerns. First, more than
2.5 crore children have already been enrolled under the programme, without any procedural
safeguards that look into issues pertaining to consent, or review of information.
Second, though the Unique Identification Authority of India, which operates the Aadhaar programme, has been asked to take “special measures” while issuing an Aadhaar number to children, the Act does not make any mention of what the measures are, and the programme does not allow children to opt out at a later stage. This is an important clause because children are largely not the ones deciding to enroll in the first place.
Researchers
agree that children differ from adults in terms of their capacity to make decisions. They point out that the ability to make logical and rational decisions comes with age and the development of one’s cognitive skills. This is not a new finding – lawmakers have been aware of children’s inherent incapacity for a long time. The need for parental consent for children’s medical treatment or the legal invalidity of contracts by minors are examples of this.
In the context of Aadhaar however, these concerns seem to have completely escaped the consideration of our lawmakers. Raising an entire generation in an environment of biometric ubiquity merits a hard look at the implications of such a society and its impact on our children.
Practical concerns
In recent months, the government has been pushing to register children under Aadhaar
right at birth, at the hospital itself, to ensure full enrolment in India by 2017.
Children under the age of five do not need to provide biometrics for enrolment. Their Aadhaar number is mandatorily linked to that of their parents. Children are required to submit their biometrics once at the age of five and subsequently at the age of fifteen. This is because biometrics such as fingerprints and irises are yet to fully develop.
However,
several problems arose during the pilot project for this. Enrolment agencies found it tough to capture acceptable images because newborns would not keep still. The absence of distinguishing features between children made the photographs meaningless. Further, many children in India are not named immediately at birth. Despite these practical hurdles, the government seems undeterred from its plan of enrolling infants at birth.
Privacy issues
The information collected by the Unique Identification Authority of India is stored on a central database. Apart from the personal details, including biometric information, the database also keeps a record of all transactions made using the Aadhaar number
As a result, every time someone uses the number, a new entry gets created against their record in the system. With children being forced to enrol, this database can become a lifelong trail of all their transactions.
Under the Aadhaar Act, this information can be shared “in the interest of national security” and if ordered by a court. Consequently, detailed information from an individual’s childhood could be retrieved several years later in a completely different context.
At present, the Supreme Court is hearing
petitions against the
Aadhaar programme. If Aadhaar survives these legal challenges, the UIDAI must ensure that all authentication records are automatically deleted once a child turns 18.
Question of consent
The UIDAI requires parents’ Aadhaar information to be linked with children only up till the age of five. Its
website clarifies that children above that age need to submit their biometrics.
However, it makes no mention of parents’ consent being required for enrolment of children between five and 18. Further, there are no rules allowing parents to access their children’s information and review or correct the same.
Sona Mani Devi gave birth on NH-33 in Latehar, Jharkhand on September 10. She was required to get Aadhaar made for her other two children by their school teacher even while she was pregnant and was not in a condition to travel, reported Indian Express.
Several countries across the world have given statutory recognition to the fact that children lack capacity to give consent. The UK Protection of Freedoms Act mandates that written consent of at least one parent is necessary before schools use biometric information of children. This consent can be withdrawn at any stage. Any objection raised by the child overrides parental consent. Further, it is the school’s duty to provide reasonable alternatives to make those services accessible if there is no consent.
Similarly, the US has the Children’s Online Privacy Protection Act to safeguard children’s information on the internet. It requires websites and applications to obtain a parent’s consent for children below the age of 13. It allows parents to access this information and request that it be deleted.
One may argue that the absence of choice with regard to Aadhaar makes the whole issue of informed consent moot. After all, the resultant exclusion from benefits as a result of non-enrolment implies that people will be forced to enroll. But it is erroneous to think that informed consent is limited only to choice.
Understanding and appreciating the consequences of a decision are inherent aspects of
decision-making, and this is a capacity that children lack. However, the enrolment of children under Aadhaar
continues unabated without addressing these concerns.
The processes in place for children's enrolment, if any, are completely opaque. There is little clarity on the role of parents’ consent in capturing biometrics, accessing information, correcting it and the duration that every minor’s data can be held for.
As a result, children are being enrolled in a system without any understanding of it and without an option to have their information deleted once they attain adulthood.
And so, many children like Seema will have to prove their identity throughout their lives for the most innocuous and mundane transactions. Within five minutes of her birth, her parents and the health centre officials in Khajuwala, Rajasthan, decided she must have an Aadhaar number. In all probability, she will never have an opportunity to review this decision for herself.
Kritika Bhardwaj works as Programme Officer with the Centre for Communication Governance at the National Law University Delhi.
