The Finance Act, 2017 which was passed by the Lok Sabha last week has now made it mandatory for people to disclose their Aadhaar numbers while filing their income-tax returns. This move by Parliament comes close on the heels of a slew of notifications by several Central government ministries making Aadhaar compulsory for almost three dozen schemes, including for accessing grain under the public distribution scheme.
Since its inception, the opposition against Aadhaar has been mainly based on the possibility of the government using the Aadhaar database as a tool of surveillance. Activists have raised fears that the use of Aadhaar is a means to enable a surveillance state that will destroy a citizen’s privacy and empower the state in a draconian manner.
I will argue against this proposition and explain why the more immediate concern with Aadhaar is the fact that it can lead to massive exclusion of people from welfare schemes.
Aadhaar and surveillance
There are three important sets of data collected or generated during the process of enrollment, authentication and use of the Aadhaar number.
The first, obviously, is the biometric and demographic information collected during enrolment. Most of the enrolment process was outsourced to public and private companies that had a contractual obligation towards the Unique Identification Authority of India – a statutory body that issues the Aadhaar number and manages the database – to maintain the confidentiality of the information stored by them. This contractual obligation was converted into a statutory obligation with the enactment of the Aadhaar Act, 2016. Chapter VI of this law creates a legal duty upon the Unique Identification Authority of India to protect the confidentiality of such data and provides for criminal punishment in case of its misuse. The legislation also curbs the ability of the state to access the data stored by the statutory body. Section 33 requires a warrant from a district judge before the Unique Identification Authority of India can share its data, and even then the core biometric data of fingerprints and iris scans cannot be shared.
The second category of data is authentication records, which contains details of the agency requesting authentication. These records do not contain details of the transaction between the Aadhaar number holder and the service provider who requests authentication. This means if you use the Aadhaar number to withdraw money from a bank, the Unique Identification Authority of India will only maintain a record of the name of the bank that has conducted the authentication, but will not know details of the transaction. The state’s ability to access the authentication records maintained by the statutory body have been curbed by Section 33 of the Aadhaar Act.
The third set of Aadhaar-related data is the kind that will be generated by convergence between different databases. When the Aadhaar number is seeded, or linked, in different government databases, it is matched against existing identifiers such as ration cards and driving licenses, making it easier for the government to interlink its own databases by using Aadhaar as a unique identifier. Thus, by keying in the Aadhaar number into an interlinked database, a government officer will be able to access all information related to the citizen’s use of a ration card, driving license and any other government or private service. The Aadhaar Act does not provide for any safeguards against this practice, but then again it should be noted that computerisation and big data practices makes convergence between databases a reality with or without the Aadhaar number. There have been studies that show that mobile numbers can serve the same function to facilitate convergence. This is an issue that is much larger than the debate on the Aadhaar database and one that needs to be debated in India.
The national security exception
There is a national security exception in Section 33, which allows a Joint Secretary of the central government to facilitate access to all of the data stored in the Aadhaar database. This exception also provides for such decisions to be reviewed by a group of senior bureaucrats, much on the lines suggested by the Supreme Court in the People’s Union of Civil Liberties vs Union of India (1996) case. From a legal perspective, such a setup will likely be upheld before the Supreme Court based on the precedent set in this case where the People’s Union of Civil Liberties had argued that it would go against the (rather ambiguous) right to privacy for the executive to conduct phone tapping without seeking prior judicial. The Supreme Court rejected the argument and instead fashioned some safeguards such as a review committee to monitor the government’s phone tapping activities. While the safeguards leave a lot to be desired, the fact is that the Aadhaar Act, 2016, incorporates them.
Separate from the legal issue, there is the factual issue of whether the Aadhaar database is useful from a surveillance perspective. In India today, multiple agencies ranging from the state police to the intelligence agencies can tap phones and monitor the internet without requiring any prior permission from judicial authorities. The National Intelligence Grid and the Central Monitoring System – intelligence gathering and monitoring mechanisms in India – currently function without any judicial or parliamentary oversight. Similarly in the context of financial information, thanks to computerisation and the use of unique identifiers like the Personal Account Number, or PAN, the government has been collecting reams of data without any data protections laws in place.
The data generated by the Aadhaar system simply pales in comparison to the large volumes of data being collected by government agencies through surveillance of telephones, the internet and financial transactions. This is not to say that unbridled state surveillance is okay but merely to point out that the government does not really need Aadhaar to conduct surveillance when it has granted itself a blank cheque to conduct surveillance through other means.
The real danger: Exclusion
Now coming to the more pressing issue of exclusion due to authentication errors and deactivation. Both these issues have an immediate impact on millions of people across India.
As has been reported by several news outlets, including Scroll.in, a large number of Aadhaar number holders are facing authentication problems while trying to access foodgrains under the Public Distribution System and other welfare services. These complaints have been made from across the country, ranging from Karnataka to Rajasthan to Jharkhand. A study commissioned by Andhra Pradesh in 2015 reported an astounding rate of failures. As reported by the Hindustan Times, the study found that 50,151 of the 85,589 Aadhaar number holders were unable to access rations from across 125 ration shops. The exact reasons for the authentication failures are not clear and can range from enrolment errors, seeding errors, poor quality of fingerprints and poor internet connectivity. What then happens to the Aadhaar number holder? While some states appear to have fallback mechanisms to ensure nobody is deprived of an entitlement, there are other states which are simply denying the Aadhaar number holder the entitlements due under the law.
The remarkable legal issue in this context is the legality of the state’s denial of a statutory right due to the refusal of artificial intelligence to validate a transaction. Can the state use this as a legitimate excuse to deny a legal right such as the right to food?
The second issue of deactivation of Aadhaar numbers is equally important. As explained in this article published in Scroll.in, the Unique Identification Authority of India has deactivated 8.5 million Aadhaar numbers for different reasons between 2010 and 2016.
These reasons include the abuse of biometric exclusion clauses by enrolment agencies and failure to update biometrics for children on reaching certain milestone ages. According to the Right to Information replies received by Scroll.in, the deactivations are taking place through an automated process without human intervention and without giving prior notice to the resident holding the Aadhaar number. In other words, an artificial intelligence programme is depriving millions of Indians of their rights. This is a rather strange scenario because Section 3 of the Aadhaar Act makes it clear that every resident (not just citizen) shall be entitled to obtain an Aadhaar number. If Parliament has vested a right in all residents, can the executive strip a person of such a right without so much as a prior hearing and legal notice? This again is a question that is begging to be heard before a court of law.
The Aadhaar debate has to pivot to focus more attention on this issue of exclusion. We ignore it at the peril of those who survive on government welfare.
Prashant Reddy Thikkavarapu is a Research Associate at the School of Law, Singapore Management University.