The Supreme Court hearings on petitions against India’s flagship unique identity scheme, Aadhaar, are ongoing. Last week the Attorney General argued the Right to Privacy is not a fundamental right and cannot be invoked to terminate the scheme. Srijit Mishra writes that both arguments in favour and against Aadhaar are linked with the Right to Privacy, and that the court ruling will therefore have implications beyond the current case.
There is much talk today in India on the Right to Privacy after the Attorney General Mukul Rohatgi argued in the Supreme Court that it is not sanctioned by the Constitution. In arguing so, he referred to an eight-bench decision of 1954 by the court while defending the roll out of Aadhaar (a biometric unique identity card with other information) to facilitate provisioning of public services and also to root out possible leakages in the delivery of these services.
The case against Aadhaar combines a number of civil writ petitions; the foremost among them being the one filed by Justice KS Puttaswamy in 2012. The ruling on privacy will have important implications on the relationship between the individual and the State that can go beyond the current case.
Individual versus State
Imagine a situation without a State. Each and every individual will have the right to do what they want. There will be no restrictions. But the free-for-all regime could lead to chaos. To bring order that makes life simpler for all concerned, the individuals agree to regulate themselves (a form of social contract) to enhance their own self-interest. Such regulated structures take different hues and forms that in some sense is based on the space provided for individual freedom and rights, the control that the State has in regulating these, and who constitutes the State.
In a democracy, as in India, the State is “by the people, for the people, and of the people.” Of course, all individuals cannot run the State. Thus, some are selected to different positions to facilitate legislation, execution, and adjudication. In this, the Constitution has an important role in having an appropriate balance between individual rights and the State’s regulations controlling those rights. Or, as the important adage goes: “The right to swing my fist ends where the other man’s nose begins.” The State has to ensure individual rights to swing their fists, but with appropriate restrictions so that others are not hurt. This has important implications for the current arguments on Right to Privacy.
Right to Privacy
Aadhaar is supposed to provide a unique digital record of each and every resident (not citizen) of India. It has socio-economic and biometric (iris scan of the eye and finger prints) information of the individual. The information is collected by third-party entities who have been contracted or sub-contracted to do this. There is no law mandating its collection. There are also no legal provisions mandating data protection and putting in place appropriate checks and balances against misuse.
Thus, one could contend that if there is a law mandating its collection and also provisioning for checks and balances against misuse even when third-party entities are involved then there should not be a major problem from the privacy perspective. But, a law should not be passed because the State is already collecting this information, it should be passed because there is a need for it.
A look at the case with regard to the eight-bench judgement of 1954 by the Supreme Court cited by the Attorney General indicates that the court upheld the State’s right to search and seize information and documents to unravel possible misappropriation and embezzlement of funds. In other words, the judgement empowered the State to act against someones inappropriate and improper swinging of fist. Citing this as a right of the State to conduct search and seizure or collect information because individuals do not have a right to privacy is like an argument that the State has the right to intrude into individual’s lives. This implies that the State has the right to swing its fist in whatever direction it pleases. But, this is contrary to ones understanding that the role of the State is to regulate and control inappropriate swinging of fists by others. In addition, the various branches of the State should guard against the wrongful swinging of the fist by any of the branches of the State.
What is generally argued in favour of Aadhaar, as indicated earlier, is that it would curb the inefficiencies in the provisioning of public services and do away with rent seeking (an euphemism for corruption). These two powerful economic justifications reinforces the rightful role of the State to prevent wrongful swinging of the fist. Therefore, it is necessary to dwell into this economic merit.
It is argued that the Aadhaar digital record will have biometric information of each and every individual and thus the benefits to a particular individual will be transferred to that individual’s bank account that is also linked to the unique biometric card. This will do away with middlemen, cut delays, and there would be no leakages.
One concedes that there is a merit in this digital linkage of monetary transactions. Mobile monetary transactions have become common place in many parts of the world and some telecom operators also provide it in India. The world is also moving in a direction of paperless monetary transactions. However, there is no need to link the collection of biometric information to take this advantage of digital and paperless monetary transaction. In fact, the State has also been using such transactions even without they being linked to Aadhaar.
In suggesting an alternative mode of transaction that does away with certain inefficiencies, it is not proper to assume that the transition to the new medium will be seamless and without errors and that there are no inefficiencies there. This means that there ought to have been pilot interventions, with due legal diligence and their pros and cons discussed with an open mind and shared with the larger public before it is made into a law.
Another important economic concern that misses the eye is that the whole exercise of provisioning an Aadhaar has costs. It has budgetary implications that draws on taxpayer’s money. Besides, there is a duplication of effort of some of the information collected. For instance, all those who are issued a passport also provide their biometric information. This is also partially the case for obtaining a driving licence. We also have the voter identity card and then there is the permanent account number for income tax purpose. Can we not do away with these multiple entities? Proponents of Aadhaar may state that it eventually will. If that is the case, then there is in fact greater merit that this was properly piloted, debated, and only when convinced then put into law with appropriate checks and balances. This takes us back to the non-economic domain.
The non-economic domain
Technology has advantages and it should be used to enhance those. But, we should not lose sight that technology is only a means to an end. In a democratic polity, the end cannot be devoid from peoples life and liberty with dignity, an aspect enshrined in Article 21 of the Constitution.
The argument in favour of Aadhaar are linked to provisioning of public services. But then why insist on an Aadhaar card even on those who do not want to take benefit from public services. Extending it to all should be considered as an unnecessary exercise. For instance, this travesty is amplified by insisting on linking Aadhaar to LPG beneficiaries (not participants or customers) and then asking these individuals to relinquish their subsidies. So, why link it to their Aadhaar card, which in any case is still not mandatory for provisioning of public services.
The most important anomaly one finds is to link public provisioning in terms of cash transfers to Aadhaar linked bank account. One understands that the NITI Aayog is now trying to look at poverty in multiple dimensions, but if interventions will only be in monetary terms, irrespective of the dimensions of deprivation, then it is back to square one. Deficiencies in the real world cannot just be left to cash transfers. Aside: It seems that this could be the beginning of a move to do away with public provisioning.
It is also argued that in this digitally connected world, the personal information of the individuals are there in the public domain. Data theft is now in the click of a button. A scary, but unfortunate truism. But, then this is no argument for the State to facilitate this process. Rather, to the contrary, the State, should be looking into ways and means to prevent this. This would be commensurate with the thinking that the State’s role is to prevent individuals from being punched in their nose.
To sum up, the arguments in favour and against Aadhaar are linked with the Right to Privacy. Its outcome in the court will have implications beyond the current case. The State has to walk a tight rope balancing individual rights with appropriate restrictions. One also should not lose sight that the State, as also money and technology are all means to an end. In the end, for a democracy, it is people that matter.
This article originally appeared 26 July 2015 on the author’s personal blog. It is reposted with permission.
Note: This article gives the views of the author, and not the position of the South Asia @ LSE blog, nor of the London School of Economics. Please read our comments policy before posting.
The Right to Privacy argument trotted out endlessly against Aadhaar, is primarily, and as usual, a borrowing from the Western fad of the day. The administrative and economic argument in favor of Aadhaar is indisputable.
BUT there are two aspects which are much more important from the National Security point of view which are largely being ignored: (i) who is authorized to collect and record this Aadhaar information? Petty traders, all kinds of small business entities whose antecedents are unknown or unverified–these are the contractors and sub contractors. (ii) any one currently resident in India can get an Aadhaar card because the creator of Aadhaar, Nandan Nilekani, cleverly separated the two issues– of identity of the Aadhaar seeker from the person merely possessing the card. According to this clever IT man, whether the seeker was a genuine citizen or not, was not for the collector and recorder of the personal data or the card issuing authority but that of another entity, namely the Ministry of Home Affairs and the Intelligence agencies. What is the result? An unknown number of non-Indian citizens have acquired Aadhaar merely based on residence at the time of seeking the card. With Aadhaar so acquired now they can argue that their name is wrongly omitted in the Voters list and demand voting right in India! ( banking rights, gas connections etc are petty things in comparison). Now the present Govt in India is trying to remedy the situation. The intransigence of the Man Mohan Singh Govt. has resulted in more work and much more expenditure to identify Aadhaar owners who are non-citizens, may be even foreign spies and illegal immigrants! What is the answer to a simple question: what is the legal standing of a person who has an Aadhaar card acquired with false or fake information? What is the legal liability of the entity who recorded the primary data and what is the legal liability of the card issuing authority?