Jaleel Wani
“The system in India is the most sophisticated that I have seen and it should be good for the world if this became widely adopted” remarks by Paul Romer, a chief economist of the world bank regarding the Aahaar program of India. Later World Development Report 2016 also mentioned that,”a digital identification system such as India’s Aadhaar, by overcoming complex information problem, helps the government to promote the inclusion of disadvantaged group”. This gives us a clear insight of the scheme started by the government of the India.
Aadhaar is one of the technological successes of India and is an initiative unparallel in scope anywhere else in the world. India is largest leading the way in the implementation of national identification program linked to biometric data. This data is collected by the Unique Identification Authority of India (UIDIA), a statutory authority established last year by Government of India under the ministry of Electronics and Information Technology, under the provisions of Aadhaar act 2016. No doubt as of now this system provided more than 113 crore residents of India an Aadhaar card which is roughly 88.8% of the projected population, is facing a legal battle to make it mandatory for Indian citizens in order to ensure efficient delivery of subsidies , benefits and services under Aadhaar act 2016.
On August 2015, a three judge bench of the Supreme Court held in ‘K.S. Puttaswamy case’ that the production of an Aadhaar card would not be condition for obtaining any benefits otherwise due to a citizen. Also bench said that having regard to importance of the matter, it is desirable that the matter be heard at the earliest.
There after five judge constitution bench held in its interim order on October 2016 that,” we will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by the court one way or the other”. This order also restricted the use of the aadhaar number to six schemes namely, Public Distribution System(PDS), Subsidized LPG cylinders , Mahatma Gandhi National Rural Employment Guarantee Scheme(MGNEGS), National Social Assistance Programme (old age pension, widow pension, disability pension), Prime Minister’s Jan Dhan Yojna and Employee Provident Fund Organization(EPFO).
Again Honorable Court in ‘All Bengal Minority Students Council and Anr v/s UOI’ case held that Aadhaar could not be made mandatory condition for any Government scheme. However, the Central Government issued a series of notification making it mandatory for purpose other than those permitted by the Apex court.
For instance the Ministry of Micro Small Medium Enterprises made it mandatory for MSME to register online through Udyog Aadhaar , that too within 5 days of Supreme Court interim order. Scholarships under the University Grant Commission began to be restricted to Aaadhaar holder or those who had enrolled for it. Even CBSE insisted on Aadhaar for NEET test 2017 aspirants. Railway recruitment board made it mandatory for its examination. Ministry of Human Resource Development made it mandatory for national means-cum-merit scholarship scheme and National scheme of incentive to girls for secondary education. From January this year Aadhaar enrollment became mandatory under National Food Security Act and Employee Pension scheme. Recently section 139AA of Income Tax Act 1961, as amended by Finance act 2017, provide for mandatory quoting of Aadhaar or enrollment ID of Aadhaar application form to file Income Tax return and to make an application for allotment of Permanent account number (PAN). Also in this regards even states were not holding back. The candidates for Utter-Pradesh state common entrance test were required to furnish Aadhaar Number. Andra-Pradesh engineering, agriculture and medicine common entrance test was also restricted to Aadhaar holder. In short Government of India is continuously expanding the requirement of Aadhaar for various services.
While there is doubt that the purpose behind making Aadhaar mandatory is to simplification of delivery process ranging of service to the citizen as well as distribution of benefits and subsidies which saved more than 36 crore in two years as per Governments statistics, to bring transparency and efficiency, receipt of entitlements in a convenient and seamless manner, obviating the need to produce multiple document to prove ones identity. In general it is meant to streamline bureaucratic process for better governances. It is off course a mass surveillance technique as well, unlike targeted surveillance is good thing and essential for national security and public order and would be best remedy to combat a rising global phenomena of terrorism. Apart from these, few well renowned political scholars, strategic analysts and foreign policy composers suggesting that Government should integrate the project into its neighborhood foreign policy agenda thereby countering Chinese companies who actually supplying digital network to them.
Referring to this specific purpose Nandan Nilekani, the brain behind the unique identification concept said,” other Governments are already interested in its potential. Countries such as Afghanistan, Bangladesh, and Tanzania have visited India to talk about this system”. Besides purposes Aadhaar Act raised serious issues which are awaiting resolution by the Supreme Court.
One is the Aadhaar act is palpably arbitrary and illegal in as much as it creates an artificial impermissible classification between those entitled person who have parted with biometric and those entitled persons who have not parted with biometrics.
This is a serious flaw, held violation of Article 14 of the constitution which guarantees equality before law and equal protection of law.
Second is that state can’t enact a law or create a system that by its very design and operation will place the state in an extremely dominant position in relation to every citizen. The state is under obligation under Article 13(2) of the constitution to ensure that it shall not make any law that takes away or abridges the fundamental right conferred under part third of the constitution.
Third is that the constitutional limitation as such that the Government can’t engage in surveillance of citizens even each of these citizens volunteer to be subject to surveillance. As a person has full dominion and control over her core biometric, just as she has her body and personal autonomy, any collection of personal biometrics can only be done through free and informed written consent on the part of the individual (issue relating privacy).
Fourth is that taking of person’s fingerprint and iris scan without informed consent is a physical invasion of his or her bodily integrity.
Fifth is while engaging in the exercise of collecting biometrics, the Government acts as a trustee at every stage. The role of trust, given the sensitive nature of the information must be exercised by the state or organs of the state alone and can’t under any circumstance be delegated to private parties operating without any governmental supervision. The crucial stage of obtaining consent or informed consent is entirely in the hands of private players and thus against the principle of trusteeship. Sixth, this data of every citizen can pose serious problems to our country’s internal security.
There is always an urge to acquire such data by firms to market their products catering to individual specificities but the dangers will go beyond the mere urge for profit maximization. Another aspect is that concerns of safety of data are related to the issue of cyber security. Even the most formidable firewall of NASA and Pentagon has been beached. Last but not the least is that the way Aadhaar bill was passed needs to review and check its constitutional validity.
What needs to be done is that instead of arguing the privacy is not a fundamental right Government should assure the citizens that it has the technique and system to protect the data collected and will do everything possible to prevent unauthorized disclosure of or access of such data. This century comes with certain risks; therefore Government should recognize both the need for Aadhaar and the need to stringent rules concerning access to and security of citizens’ biometric data in order to preserve privacy.
(The author is a student of Jamia Millia Islamia University New Delhi)
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