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When Aadhaar becomes a noose

Last updated on February 21, 2020

Whether the government will track an individual is a secondary thing, but to have the architecture, which can build electronic trails of a person through cross-linking databases, is dangerous beyond imagination

Hriday ran from pillar to post with his pregnant wife and daughter to get an Aadhaar card. Being a migrant worker from Bihar, he failed to acquire it because he did not have a permanent residence in Delhi. Alas, his wife could not avail maternity benefits for their new-born.

For Sandhu, the first few days of every month have become tedious ever since ration distribution started being made through Aadhaar. She goes to the local ration distributor every day and often comes back empty-handed and tired, having waited for hours.

Her allocated shop is already crowded with ration-seekers from other shops, as was reportedly allowed recently. On top of that, she stands in a queue choked with the constant fear that the biometric machine may not read or recognise her thumb impression, as happens frequently with many others. Often, the machine doesn’t work.

The beneficiaries of government schemes, mostly the elderly, are either asked to call other family members listed on the card — to try their fingerprints — or denied the rations. They are also advised to go to the Aadhaar office to get the matter fixed — an act which leads to wage loss for the day.

Despite standing in long queues for hours, the people pacify themselves with the idea that the government introduced the Aadhaar process to tackle duplicity and corruption. They know that many of their own people hold multiple ration cards.

Held hostage

Aadhaar continues to hold the people hostage even though the Supreme Court extended the deadline to link it with bank accounts, mobile phones and other welfare services till March 31, from December 31, 2017, earlier.

Despite the court order and the Centre’s willingness to extend the last date for linkages till March 31, 2018, Patriot discovered that several gas connections were cancelled after December 31, and reinstated only on submitting Aadhaar details.

Other institutions too have continued to confuse the public. Last year, on October 18, Moneylife revealed the Reserve Bank of India’s RTI response, which seemed to free customers from linking their bank accounts with Aadhaar. Days later, the central bank mandated the
linkage.

While mobile and other service providers constantly spam reminders of Aadhaar linkage, finance minister Arun Jaitley gave a speech on Budget day praising the unique ID and proposing a similar  ID for all kinds of enterprises.

What about the hearing?

Many people aren’t even aware that a case against Aadhaar is being heard daily by the apex court and have willingly surrendered their data to the state and private entities. Those who know, and have held on to their data, wonder if the recently achieved Right to Privacy would change anything about this forced identity card.

Experts have differing views. Advocate Sajan Poovaiya, who represented one of the petitioners in the privacy case, had told Patriot that the government would have to remodel the Aadhaar infrastructure such that it complies with the fundamental right to privacy. However, former attorney general Soli Sorabjee believes that since fundamental rights are not absolute, the privacy judgment may pop arguments against Aadhaar — yet the court can save it under the “reasonable restrictions” clause.

The constitutional bench that is hearing the Aadhaar case comprises Chief Justice Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan.

“Initially, the bench did not believe that Aadhaar could even be a threat to democracy and individual liberty, until the time it looked into the petitioners’ submissions,” said one of the senior advocates arguing in the case.

We bring to you some of the crucial arguments put across by various advocates against Aadhaar, which citizens must be aware of to understand the dangers of the unique ID.

Probabilistic Template: Senior advocate Shyam Divan — who is representing petitioners such as retired Justice KS Puttaswamy (Karnataka High Court), activists Aruna Roy and Shantha Sinha and veteran CPI (M) leader VS Achuthanandan —  explained the template model of Aadhaar that captures all 10 fingerprints, a facial photograph and two irises of an individual, but “picks up say 100 distinctive points called minutae… and sets a number as to how
many of those 100 points should match.” While expectations of a match as high as 100/100 are unachievable, a number extremely low is useless. Divan questioned how therights entitled to citizens can be “made probabilistic”. Consent of children: The privacy judgment quotes: “Privacy of children will require special protection not just in the context of the virtual world, but also the real world.” Children, before attaining a consenting age, have already handed over their personal identifiers to a forsaken system.

Non-serious UIDAI: Divan pointed out the government’s lack of seriousness in its investment in infrastructure, as very few posts have been filled in the office of the Unique Identification Authority of India (UIDAI), which outsources the Aadhaar enrolment process to private agencies. Since this “giant electronic mesh” came into existence in 2010, data operations between the UIDAI and enrolment agencies have worked without any definite legal framework. As a result, according to a report in The Times of India, over 49,000 fraudulent operators were blacklisted from 2011 to September 2017. The affidavit submitted by Rakesh Mohan Goel, a computer industry expert who audited enrolment centres, mentioned about people storing Aadhaar biometrics and the UIDAI having no way of knowing. “Until the next person comes, the fingerprints stay in the machine, and can be utilised,” the counsellor told Patriot.

ID proof and savings: In his Budget speech, Jaitley praised Aadhaar for providing an identity proof and easing delivery of public services. In court, Divan nullified the Centre’s claims. He brought into notice the fact that — according to an RTI response from the UIDAI in 2015 — 0.03% of Aadhaar-holders got the ID number without showing any proof of identity and address. He also highlighted the many fake Aadhaar identities created with forged documents.

Quoting UIDAI’s data, he said that out of 74 lakh NREGA job cards seeded with Aadhaar, 63,000-67,000 were bogus. Another year, about 93,000 were cancelled for several reasons; about 1% were fake, according to an RTI reply.

“The maximum savings this would yield is R127 crore. This is less than 5% of the claimed savings of R3,000 crore,” argued Divan, according to the live tweets on Aadhaar hearings by advocate Gautam Bhatia.

An RTI reply from 2017 said that 6 crore and 23 lakh biometric enrolments were rejected because of duplicates — “This is larger than the population of Gujarat.”

“LPG linkage began as a pilot in 2014. The figure given in the UIDAI affidavit is R14,000 crore of savings. However, Cabinet Secretariat minutes show an annual subsidy saving of R91 crore,” said Divan.

Slow Process: The first few days of the month have become tedious ever since ration distribution started being made through Aadhaar

Points to ponder

  • The system is so bleakly designed that apart from the state and corporates, millions of citizens’ crucial information is loosely available to any random individual for a minimal price (as exposed by The Tribune). The Standing Committee on Finance’s report (2010) on the old Aadhaar Bill had already warned about the issues of privacy, security and data theft; and mentioned that the UK too revoked its national biometric database on grounds of being “unsafe, untested… and a potential threat to personal rights.”
  • Cloning of fingerprints is easy and is being done. In Surat, biometric data for ration card-holders was stored and later stolen.
  • “Every individual is a self-authenticating source of valid claims”. If a person exists in flesh and blood, why should he/she be denied anything?
  • Though it is believed that Google, Facebook and our cellphone companies know a lot about us than the government — since netizens themselves give away all details to them — Kapil Sibal argued that the companies/services still give the option to opt out, unlike Aadhaar.

The option to “opt out” or to demand that “this database be deleted” is becoming a dismal fight. And, even if the court agrees to it, isn’t it too late? What if the data has already been copied and saved to hidden destinations? Would anyone from the government take accountability and bear the penalty? Would the court bench declare it a criminal offence? And how should data compromise be dealt with?

“It may be a criminal offence under the Aadhaar Act itself. But, if the UIDAI has compromised the data, the UIDAI is not going to prosecute itself,” the advocate told Patriot.

Meanwhile, the Justice Srikrishna Committee, appointed by the ministry of electronics and information technology, is working on framing a law on data protection, of which Aadhaar would just be a subset, as explained by the chairman, Justice BN Srikrishna. Currently, it is inviting comments on the white paper from various stakeholders.

Apart from a submission by 20 advocates, Mozilla, the creator of open source browser Firefox, has written to the committee stressing the urgent need to have a policy.

The right to be forgotten

The privacy judgment highlights the significance of the right to be forgotten in the digital era, when the internet stores everything. Yet, the bench did not approve of the right for archival and research reasons. The way our intimate data has been shared with private entities, it is critical to recognise the right to informational self-determination, as was also argued by Divan in the privacy hearings.

In Aadhaar’s first hearing, Divan submitted how mandating Aadhaar will make government the ultimate ruler, hollow out the Constitution and take away citizens’ rights merely for not having the 12-digit number. Whether the government will track an individual is a secondary thing, but to have the architecture, which can build electronic trails of a person through cross-linking databases, is dangerous beyond imagination.

The central data can be “designed to track transactions across the life of the citizens” and “will enable the state to profile citizens… assess their habits and silently influence their behaviour”, including “to stifle dissent and influence political decision-making”. Thus, the state gets a “switch to cause civil death of an individual”.

“Privacy is one of the most important rights to be protected both against state and non-state actors,” the privacy judgment stated.

“They can go on multiplying these IDs,” giggles Yashwant Sinha, the former finance minister. “We have PAN, we have TIN, we have all kind of acronyms. I have no doubt that this scheme is meant for surveillance. The companies already register themselves with the Company’s Act, income tax, and GST now. On top of it all, to ask for another special registration for this ID, doesn’t make sense to me,” Sinha tells Patriot. He believes there’s already enough infrastructure in place for enterprises in India, setting up another ID is mere waste of resources.