By Aman Bagaria
The Supreme Court has formed a five-judge constitutional bench headed by Chief Justice of India, Dipak Misra, to hear the matter of the constitutionality of issuance of the Aadhaar card and the mandatory linkage of the biometric identity to several services and social welfare schemes. The first petition was filed five years ago and the court has heard matters related to the Aadhaar-PAN linkage and the Right to Privacy judgment.
Issues raised included the unconstitutionality caused by the centralisation 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.
Centralisation in Aadhaar data aggregation
The difference between Aadhaar data collection and other forms of data collection is a question being asked repeatedly by the Bench. Previously, this was asked with respect to Google and also the use of an iPhone, both of which collect data extensively.
The difference between data collection by the State via the use of a PAN card and the Income Tax Department, and that via Aadhaar is under question. Earlier information on a persons financial transactions is with the bank, his call records with his Telecommunications Service Provider and locational data with the Internet Service Provider. The Aadhaar system allows this data that was normally in silos, to now be centralised in one place, thus enabling easy access and complete tracking of an individual.
Another problem with the scheme is how the tracking differed fro, a bank that offers all payments to be made from one place, such as insurance payments, bill payments and car insurance payments. Many mobile wallets and mobile banking apps today offer such services, where you can conduct a variety of financial transactions from a single app. It was asked if the real issue is, to have norms preventing collection and use. An argument to the issue was of not having a system of checks and balances, but about architecture that enables pervasive surveillance.
Questioning the legal basis for Aadhaar
The Aadhaar system was commenced in 2009 via an executive notification. This was followed by the Aadhaar Act, much later in 2016.
This violates the rule of law, a concept forming a basic feature of the Indian Constitution, which says that the nation is governed, not by the rulers or the peoples elected representatives, but by law. This ensures that the powers exercised by such authorities are limited by law. This can also be seen in Article 21which states that no person can be deprived of their life or liberty except by the authority of the law.
The notification setting up Aadhaar made no mention of biometrics or fingerprints, thus violating norms of taking demographic data under the Census Act, and norms on the collection of fingerprints under the Identification of Prisoners Act and the Bombay Habitual Offenders Act. The UIDAI, they argued, also violated norms on the right to privacy, which has been recognized since 1975 and upheld by the Supreme Court. The UIDAI also violated multiple Supreme Court orders mandating that it be voluntary. They went on to argue that the UIDAI took no responsibility for the safety of data, and also actively funded the SRDHs, without any statutory backing.
Individual right to develop their personality
Continuing the argument on limited government, the concept implied that governance was a shared enterprise between the people and the state. This includes the idea of space, that the state is not necessarily aware of every activity of the citizen, and that the citizens have a choice in establishing their identity. Individuals have a right to develop their personalities without being tracked or registered. Additionally, people have a right not to have their everyday transactions conditional on barter of their biometric information.
Challenging Aadhaar claims on welfare and savings
Lastly, several of the states statements made to justify the introduction of Aadhaar:
- Aadhaar provides people with an identity: The government statistics that only 0.3 percent of people used the introducer system to acquire an identity for the first time through Aadhaar. This is a limited number of 2 lakhs, and not that these people did not deserve an identity, but this number does not justify such an invasive system.
- World Bank report of $11 billion savings: This $11 billion claim was originally linked to an article by Shweta Banerjee, which quoted this number as the total value of transactions from 5 schemes. No mention was made of savings, thus discrediting the World Banks claims. The resignation of World Bank Official Paul Romer, over lack of integrity if data.
- 3,000 crore savings from MGNREGA scheme: 74 lakh NREGA job cards, the government stated that 63,000 were fake, indicating a maximum saving of 127 crores.
- LPG subsidy savings of Rs 14,000 crores: The Cabinet Secretariat minutes show an annual subsidy saving of Rs 91 crores. Moreover, as per a report of the Comptroller Auditor General, these savings could not be attributed to Aadhaar but a previous scheme of the NIC to weed out duplicates.
The Aadhaars concept of one nation, one identity, implies that Aadhaar was premised on the assumption that India is a nation of knaves, and that if you didnt have an Aadhaar number, you are a crook. This leads to a complete breakdown of trust between the nation and its residents. It is now up to the Courts to decide the matter and as hearing proceeds we can hope for a speedy and fair disposal of the case.
Featured Image Credits: stroud4341 on Visualhunt / CC BY