Biometric ID card project Aadhaar links almost every part of a citizen's personal life to a state database
By RHYEA MALLICK and SUBHAJIT BASU
DESHAKALYAN CHOWDHURY/AFP/Getty Images
This article was written prior to the Indian Supreme Court ruling on the right to privacy.
India is undertaking the world’s largest biometric ID card project – Aadhaar, also dubbed the "the world's biggest mass surveillance project". The government seems unaware, or unconcerned, that because of an inadequate legal framework for protecting citizens’ privacy this project will have catastrophic consequences. This overzealous project is obtaining demographic and biometric information and being forced upon Indian citizens, with no choice for an individual to opt-out of the system. The Indian government has claimed that setting up Aadhaar would establish a system of protection against wastage and corruption in the dispensation of social benefits. On 15 August, Prime Minister Narendra Modi said, "we have connected Aadhar card to government schemes to curb corruption". He claimed that in “a short span of time, the country has already saved about Rs 50,000 crores due to Aadhaar-based systems”.
Aadhaar is a 12-digit unique identification number issued to all Indian residents based on their biometrics (including fingerprints and iris scans)and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established on 12 July, 2016 by the government of India, under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. It's used, among other things, to verify the identity of a person receiving a government subsidy or a service.
However, by rapidly working towards linking Aadhaar with all public and some private transactions, the government has moved away from its initial agenda and instead towards achieving a surveillance society.
The government will argue that Aadhaar is not mandatory. However, it is being used as a prerequisite for payment of taxes, which indirectly ensures that all who fail to sign up for Aadhaar could be held criminally liable for non-payment of taxes.
This draconian ID system is linking with every aspect of an individual’s life, from booking train tickets, registering marriages, or seeking scholarships, to mobile phone numbers, bank accounts, and schools and colleges. In many of these cases, it is mandatory.
This draconian ID system is linking with every aspect of an individual’s life, from booking train tickets, registering marriages, or seeking scholarships, to mobile phone numbers, bank accounts, and schools and colleges. In many of these cases, it is mandatory.
Thus, the government can exert absolute control by cross-referencing all transactions authenticated by or linked with Aadhaar.
Indian society and politics has gone through a tectonic shift and is now in the grip of ‘absolutism’. Amid mounting governmental pressure, more than a billion Indians have signed up for Aadhaar. The aggregation of this data, along with various other data sets interlinked to Aadhaar, will enable the government to trace the movements, social relationships, and interactions of residents so that their private lives are laid bare. Seemingly innocuous, data when collated is capable of profiling residents’ lives. Once such data is in the government’s hands, wide latitude in access and use facilitates government abuse. Indeed, coercive application of Aadhaar creates a potential for mass surveillance, which in turn threatens the privacy of Indian citizens.
We argue that this systemic mass invasion of privacy will diminish citizens’ autonomy of decision making: the choice of what to make public or keep private will no longer be theirs. In a high-octane, emotionally charged democracy like India, the fear of backlash will stop individuals from expressing disagreement with the government; they will increasingly self-censor their speech and interactions. Subjecting citizens to greater scrutiny and control will tilt the already imbalanced dynamics between the administration and the citizens, leading to erosion of democracy.
"There is no express provision for privacy in Indian law"
Subhajit Basu
A group of concerned citizens has petitioned the Indian Supreme Court to challenge the government’s coercive implementation of Aadhaar and the resulting invasion of privacy. However, the government, vying for unchecked power to procure and use the data associated with Aadhaar, openly denies the existence of any constitutional right to privacy.
On July 26, 2017, attorney general K.K.Venugopal said: "Right to privacy is part of personal liberty and it can’t be elevated to fundamental rights. Claims to privacy would destroy constitutional goals of social justice. So, it cannot be elevated to the status of a fundamental right. It is an elitist right for people in developed countries. India is a poor developing country (and hence cannot dream of such “elitist” rights)."
The perception of privacy in India is based on its cultural values, which seem to embrace a socio-centric conception of the relationship of the individual to society. There is no express provision for privacy in Indian law. Hence, not surprisingly, the Supreme Court of India has formed a Nine-Judge Constitutional bench to address the matter of Justice K.S. Puttaswamy versus The Union of India to determine the status of privacy under the Indian Constitution.
A total of 22 cases have been tagged by the Supreme Court to be heard by this constitutional bench. In this pending case, so far, the government has taken a ‘literal’ interpretative stance. It has argued that the petitioners have relied upon an expansive interpretation of the Indian Constitution. Article 21 of the Constitution provides for the right to life and liberty – the petitioners argue that privacy be an inalienable aspect of liberty and is therefore implicit in the Constitution.
The government, on the other hand, says that privacy is multifaceted and not all facets of privacy, particularly informational privacy, would qualify as a basic right. The government contends that in keeping with national security and public interest, informational privacy merits no restraint from the government.
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However, both ‘national security’ and ‘public interest’ are vague and subjective concepts. By leaving it to the government to decide what could and could not constitute as necessary usage of personal information of citizens, it is likely that this information could be deceptively misused for other ends. In the private sector, the government has acknowledged how unchecked collection, storage and usage of personal information by private entities could result in misuse of such personal information. To this end, the government established the Information Technology Act 2000 and the Reasonable Security Practices and Procedures and Sensitive Personal Data and Information Rules 2011, which require private entities processing personal information to ensure that written consent is obtained before collection of personal information, and that storage, transfer and usage of such information is to be limited to the consented terms.
In a case against WhatsApp, solicitor general P.S. Narasimha said that data is connected to personality and integral to Article 21 of the constitution, guaranteeing the right to life and liberty. Why then, does the government deny the same measures to the collection of biometric data under the Aadhaar scheme?
The government has further sought to justify its blanket collection of personal data by onerously arguing that it is in keeping with the ubiquity of the internet of things and big data generation and that informational privacy is an obsolete concept. Solicitor General Tushar Mehta told a nine-judge constitution bench: "Nothing is private in the online era."
In our view this ‘one-sided’ position in the government, that all individuals are willing to trade their privacy for the greater conveniences afforded by technological advancement, is an inherently flawed argument. Instead of revamping the existing data protection laws in India to protect data from being abused by private entities, the government is referring to the lack of a ‘right to privacy’ to justify its denial of accountability. The current administration while demanding transparency from the citizens seems to ignore its responsibility to transparency altogether. Consequently, the scepticism about the government’s intention is comprehensible.
What is important to note is that in the private arena, market dynamics work to ensure that private entities protect the data of their users lest any data leakage results in users turning away from them. However, there is no such counter-balancing mechanism against the government in consideration of the deeply imbalanced power equation between the administration and the citizens.
The Supreme Court is currently deliberating on the status of the ‘right to privacy’ in India. However, we firmly argue that it is crucial for the Supreme Court to recognise the constitutional ‘right to privacy’ because, without the backing of the Constitution, Indian citizens would have no protection against unrestricted surveillance by the government at a level that can only be witnessed in a totalitarian regime. The rationale behind this argument is rather simple. The existing data protection legislations in India do not require ‘consent’ for processing of personal information procured and retained through the ‘Aadhaar’ programme.
It remains significantly questionable whether ‘explicit consent’ could even exist when ‘Aadhaar’ has been made a prerequisite for availing social services. It is unfair to characterise a ‘choice’ as deliberate when the alternative is not available. It is worth noting that, the very magnitude of the database, encompassing personal information of more than a billion Indians, makes it appealingly vulnerable to hacking and cyberattacks; yet, the government is not bound to ensure that ‘adequate’ security measures are in place to protect this data.
“"This draconian ID system links every aspect of an individual’s life, from booking train tickets and registering marriages to mobile phone numbers and bank accounts"
Subhajit Basu
Furthermore, citizens do not have any place to turn if the government fails to protect their data against unauthorised disclosure and have no say in what is authorised, and to whom, in the first place. Under the Aadhaar Act 2016, the scope and definition of ‘national security’ have been conveniently left vague. Moreover, not only do citizens not have a judicial remedy against the government in case of security breach, but reports in the media also suggest that those who expose security vulnerabilities of ‘Aadhaar’ are being charged and harassed by the enforcement agencies.
What is crucial is that without the constitutional guarantee in place, in the pretext of national security and public interest, this impulsive government is free to change the rules of data collection, retention, usage and transfer, as per its convenience.
Of course, privacy is not an absolute right and is to be limited against compelling public interest and national security.
However, such invasion of privacy would have to be proportionate to the extent necessary to secure said public interest and national security. Balancing public interest with privacy concerns is incumbent. We should be focusing on an altogether different question: if we were to deny that people have the right to privacy, what would be the impact of this denial of the values that the Indian Constitution was designed to protect
The increased threat of surveillance because of ‘Aadhaar’ should be resolved with greater privacy protection. The government should be bound to procure and deal with the personal information of the citizens only in respect of purposes sanctioned by law and should also bear the responsibility in case of any security breach. It would not be enough to say that law would justify a violation of privacy; it must further be shown that the law under which the violation has taken place is just, fair and reasonable.
Subhajit Basu is associate professor in information technology law at the University of Leeds
