Centre for Internet & Society

Depending on who you ask, the Aadhaar is either a convenience or a curse.

The article was published by First Post on January 18, 2018.

The ongoing hearing in the Supreme Court is testing the constitutional validity of a scheme that has been around in one shape or another since 2003, ever since the need for an identification project was first felt.

By the government's own estimates, the Aadhaar initiative has covered 98 percent of the adult population in India and, as of 7 September, the Unique Identification Authority of India (UIDAI) has generated cards for 105.11 crore people. So, if you are an Indian adult, chances are that you possess an Aadhaar card by now.

The Aadhaar database is one of the largest government databases on the planet, where a 12 digit unique-identity number has been assigned to the majority of the Indian citizens. This database contains both the demographic as well as biometric data of the citizens.

What started as a unique identification number to streamline the distribution of welfare to the needy has now turned into an all-pervasive tool that can arm the government with sensitive data of all Indians. At the heart of this issue is the sheer quantity of data being amassed as part of the scheme and the many privacy and security concerns generated as a result of it.

The Aadhaar of today, in addition to basic personal information, includes biometric data like your fingerprints, your iris scan and now even your facial scans (albeit introduced as a safety feature). This is designed to address the issue of failed biometric authentication, as an alternative for people having difficulty authenticating, due to factors like worn out fingerprints, or changing biometric data due to old age, hard work conditions, accidents and the like.

But what it fails to address is the growing unease among citizens about the scale of the project, its intent, and the actual legality of enabling such an architecture, which could threaten the citizens with the possibility of State surveillance.

The sheer amount of private and confidential data amassed in one singular database has given rise to concerns over data security and its privacy.

However, worst fears about Aadhaar have come true after the developments that have happened over the past few weeks. A recent investigation by The Tribune revealed that the details of any of the billion Aadhaar numbers issued in India were accessible for as little as Rs 500.

Since then, the UIDAI and every other government machinery have been in top gear, trying to allay the fears around Aadhaar. It even introduced a flurry of steps to make sure that the database is safe and secure, and that the data is protected. But not everyone is convinced. Critics say, biometrics only make the citizen transparent to the State and that it does not make the State transparent to citizens.

"We warned the government six years ago, but they ignored us," Sunil Abraham, executive director of Bengaluru-based research organisation, Centre for Internet and Society, was quoted by The Hindu Business Line as saying.

According to him, the legislation implementing Aadhaar has almost no data protection guarantees for citizens. He also believes that by opting for biometrics instead of smart cards the government is using surveillance technology instead of e-governance technology.

On the other hand, finance minister Arun Jaitley said recently that an Aadhaar card could become the sole identifier for a person in future. "A stage may come that the unique identity will become the only card," Jaitley said. "There are many countries where such a situation exists. There is a social security number in America and in India it (Aadhaar) could be the counterpart."

Since its inception, the Aadhaar was always pitched as a scheme integral to the modernisation of social welfare in India.

But, according to a Scroll report, state governments are struggling to use Aadhaar-based fingerprint authentication in ration shops. Whereas, at the same time, a rising number of companies are integrating Aadhaar into their databases for private services that have nothing to do with the welfare delivery system.

So, why is the scheme failing at the very job it was created for, while proving useful to private endeavours elsewhere? Why did the BJP, a dispensation critical of Aadhaar in 2014, make a complete u-turn and become a champion for a cause backed by the UPA in its time? Are the security, privacy concerns a small price to pay for better delivery of welfare schemes or is it an instrument of surveillance and a potential goldmine for hackers?

The debate around Aadhaar and the explanations for its need and/or threats are biased, incomplete and solely depend on who you ask. Therefore, it might do well to trace the roots of the Aadhaar mission and retrace its critical moments.

Origins of Aadhaar

According to the Scroll report, India first fiddled with the idea to assign numbers to people in 2003, in the aftermath of the Kargil war.

With rising security concerns, the then BJP government under Atal Bihari Vajpayee wanted every Indian citizen to be accounted for. This desire eventually took the shape of the National Population Register, that aimed to identify citizens amongst the country's residents.

The Citizenship Act was amended in 2004 by the incumbent Congress government to make way for the National Population Register (NPR).

The second and major push for an identity project was introduced subsequently by the UPA-1 government in late 2008. With welfare spending on the rise, adds the report, bureaucrats in the erstwhile Planning Commission were worried about leakages.

Thus, the idea of constituting an authority that would aggregate all databases of social welfare programmes to create a mother database emerged.

Such a database would "weed out ghosts and duplicates so that a person who gets the LPG subsidy doesn’t also get the kerosene subsidy," Scroll quoted a former UIDAI official as saying, on conditions of anonymity.

Eventually, in 2009, Aadhaar, or UIDAI, surfaced as a 12-digit identification number that served as proof of identity and address — meaning, it applies to all residents whether they are citizens or not, unlike with the NPR. Biometric data was not in the picture at this time.

And then, in 2016, the Centre notified the new Aadhaar Act, which gives the unique identity number assigned to each Indian citizen statutory backing. The idea of this Act was to empower Aadhaar with legal backing for the purpose of transferring subsidies and government benefits to beneficiaries through designated bank accounts.

The government said in a notification that the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 will provide “efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals."

Another interesting aspect of the Aadhaar debate is the politics of it all. The Opposition, BJP back then and UPA now, has shaped much of the debate against the use of Aadhaar. But one thing that stands out in this melee is that many in the current dispensation, who are currently the biggest proponents of the scheme, had once opposed it vehemently.

"The people who thought of themselves as having given birth to IT in this country refused to listen to a common man like me. Even the SC has demanded answers,” Narendra Modi had famously said when he was the Gujarat chief minister. He had alleged that the Aadhaar programme was a bundle of lies to loot the country’s treasury.

In 2014, Modi had tweeted: "On Aadhaar, neither the team that I met nor PM could answer my Qs on security threat it can pose. There is no vision, only political gimmick."

So, how was it that one of Aadhaar's most vehement opponents became its biggest proponent?

According to a report in The Hindu Business Line,  the destiny of the Aadhaar scheme was shaped by two meetings – between Nilekani and Modi with Jaitley, and the second with Vijay Madan, the UIDAI director general and mission director.

Through the course of these meetings, the potential savings from plugging subsidy leakageswas put across to Modi, a figure of "up to ₹50,000 crore a year".

Modi in his keenness to showcase the arrival of "acche din", the report adds, immediately sought a 100-crore enrolment target at the ‘earliest’, putting paid to speculations that the new government would shelve the UIDAI project.

Thus, the current Aadhaar project was born.

Inclusion of biometric data

Although an extension of UPA's idea, the new Aadhaar act had some crucial differences:

- As per the new Act, "any person who has resided in India for 182 days (in the one year preceding the application for Aadhaar)". The UPA's Bill said any person residing in India.

- Further, the new Act says that the number can be used to verify the identity of any person, for any purpose, by any public or private entity. In the UPA's Bill, no such provision was there.

- The new Act stipulated all these identity facets to be maintained: photograph, biometric information (iris scan and fingerprint), demographic information (name, date of birth, address but excludes race, religion, caste, etc.), and Aadhaar number. The authority may specify any other biological and demographic information to be collected.

Data security debate

Over the last one year, there have been multiple instances of Aadhaar data leaking online through government websites or its mobile app. The most recent case was when an RTI query pushed UIDAI to reveal that about 210 government websites made the Aadhaar details of people with Aadhaar, public on the internet.

Centre for Internet and Society (CIS) also pointed out that about 130 million Aadhar numbers along with other sensitive data were available on the internet.

The recent Tribune report has only highlighted the deeper, infrastructural fallibility of singular mega-database of sensitive data.

As per this Firstpost piece, the UIDAI's response to such an obvious data breach and violation of privacy is extremely worrying. It is yet another reiteration of the privacy concerns with Aadhaar, and the constant denial of privacy concerns by the UIDAI instead of sitting up and addressing the problem at hand.

The large-scale collection of data and the binding of said data with almost all services raises a pertinent question: Is the government capable of safeguarding the massive amounts of data collected as part of the Aadhaar project? The answer, again, depends on who you ask.

Concerns over privacy

Apart from the security concerns, Aadhaar has brought up a question of the citizen's privacy, given that access to such sensitive data empowers the government to keep a close scrutiny of a person's financial, personal information.

The Supreme Court had held recently that privacy is a fundamental right under the Constitution with reasonable restrictions. This decision is bound to impact the Aadhaar project in one way or another, as collectively biometric data of citizens can be construed as a violation of said right.

The Supreme Court started hearing the crucial cases related to the constitutional validity of Aadhaar on Wednesday. A five-judge bench heard the arguments of the petitioner, maintaining that the government's mandatory biometric identification project is, in essence, seeking to change a people's Constitution into State's Constitution.

The petitioners made submissions ranging from the Standing Committee's observations, to the precedents as adopted by other nations to pointing out basic moral and administrative defects in amassing biometric data of citizens on such a large scale, perhaps trying to patiently drive the point that the Aadhaar project can never be safely assumed to be leakproof, hence safe, ergo, legal.

The petitioner also argued that Aadhaar could lead to millions of people being denied access to essential services and benefits in violation of their human rights, as he pointed out that biometric details of almost 6.2 crore people have been rejected, mainly due to calloused hands and fingertips, wherein biometric data could not be recorded.

"These are not dishonest people or ghosts," he said. Even the Standing Committee report on Aadhaar points out: "..it has been proven again and again that in the Indian environment, the failure to enrol with fingerprints is as high as 15 percent due to the prevalence of a huge population dependent on manual labour. These are essentially the poor and marginalised sections of the society. So, while the poor do indeed need identity proofs, Aadhaar is not the right way to do that"

In December 2017, the court had extended the deadline for mandatory linking of Aadhaar with various services and welfare schemes till 31 March, 2018. It had also modified its earlier order with regard to linking Aadhaar with mobile services and said the deadline of 6 February, 2018 for this purpose also stood extended till 31 March.

Right to Privacy and its effect on Aadhaar

In August 2017, the Supreme Court in a unanimous 9:0 judgment had declared the Right to Privacy to be a Fundamental Right. It was hailed as a big victory for pro-privacy advocates who could now point to the Constitutional Bench judgment should the right ever be questioned.

However, the judgment only established the theoretical Right to Privacy. It removed the earlier hurdles of the cases of MP Sharma and Kharak Singh which had held Right to Privacy not to be a Fundamental Right. However, the actual freedoms protected by the Right had to be enshrined into in separate judgments.

As far Aadhaar is concerned, the judgment did not invalidate it in any way. However, it did give a boost to anti-Aadhaar arguments which rely on privacy as now the government can no longer say that there is no Right to Privacy.

With 1.08 billion citizens already enrolled, the ‘mandatory vs. voluntary’ debate on Aadhaar is now mostly a thing of the past. What remains to be seen now is how the Supreme Court will rule on the constitutional validity of the Aadhaar and if the government will be willing to reform/modify the current scheme to allay fears over data security and privacy in order to retailer the project to meet its original goal, the timely and secure delivery of welfare to those who need it.

With inputs from agencies