Aadhaar and Right to Privacy

In November 2017, the Aadhaar issuing authority Unique Identification Authority of India (UIDAI), in response to an RTI query has said that more than 200 central and state government websites have publicly displayed details such as names and addresses of some Aadhaar beneficiaries.This brings us to the issue of Aadhaar and its conflict.

Aadhaar and Right to Privacy of Individuals

Right to privacy is an intrinsic human right. The supreme court of India has upheald in a recent judgement that right to privacy is protected under Article 21 of part III of Indian Constitution.

Since the beginning of Aadhaar project, the issue of infringement of individuals privacy by using Aadhaar has attracted a lot of attention. In this article, we will analyse how Aadhaar impacts individuals privacy.

What is Aadhaar?

Aadhaar is a 12 digit random unique identification number issued to Indian residents by the Government based on their biometric and demographic data. UIDAI is the issuing and managing agency of the Aadhaar cards.

As of 30 November 2017, 1.19 billion members have enrolled for Aadhaar making it the world s largest biometric ID system. As of this date, over 99% of Indians aged 18 and above have been enrolled in Aadhaar.

What s the need for a Unique Identification System?

The primary purpose of issuing an Aadhaar card was for the direct transfer of subsidies into beneficiary s bank account. Subsidies such as food, fuel, etc, suffered essentially from two problems: Mistargeting and leakages. To address these problems and save the burden on the State exchequer Aadhaar was introduced to provide a unique and single identification for beneficiaries. However, over the course of time, the scope of Aadhaar has been expanded to Mobile number, PAN card, Know Your Customer (KYC) norms, stock markets, etc. Aadhaar is said to aid in better governance and efficient delivery of services.

Aadhaar Timeline

2009: UIDAI was constituted after a notification has been issued by the Planning Commission. 2010: UIDAI identified a list of agencies which were qualified to give training to personnel to be involved in the enrolment process February 2012: UIDAI launched an online verification system for Aadhaar numbers. November 2012: Aadhaar linked direct benefit scheme was launched by the then Prime Minister of India Dr Manmohan Singh. November 2012: A Public Interest Litigation was filed in the Supreme Court of India by a former judge of Karnataka High Court K. S. Puttuswamy, that Aadhaar was being implemented without a legislative backing. They said that UIDAI was running on an executive order and hence cannot collect biometric data of Indian citizens as it would be a violation of privacy under Article 21 of the Constitution of India. 2013: Supreme Court of India issued an interim order stating that deny a service to anyone who does not possess Aadhaar, as it is voluntary. 2014 2016: The scope of Aadhaar has been expanded to many schemes like JAM Trinity, PAHAL, subsidies, MGNREGA, etc. March 2016: The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was introduced in Lok Sabha as a Money Bill and passed by the Parliament. According to this Act, Aadhaar and UIDAI have been given legislative backing. It also clarifies on issues relating to enrolment, authentication, protection of information, offences and penalty April 2016: Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act has been challenged in Supreme Court claiming it to be unconstitutional as it was incorrectly introduced as a money bill. August 2017: In KS Puttuswamy vs Union of India case, a landmark judgement has been given by the Supreme Court of India establishing Privacy as a Fundamental Right under Article 21 of the Indian Constitution. November 2017: A constitution bench is to be constituted by the Supreme Court of India to check the validity of the Aadhaar Act and if Aadhaar violated the Right to Privacy of an individual.

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Aadhaar Act and Issues of Privacy

Making Aadhaar mandatory may lead to misuse of personal information. Mass Surveillance: Unlike targeted surveillance, Aadhaar is a mass surveillance technology which makes its users even more vulnerable to leakage of biometric and demographic information thus affecting the privacy of individuals. Potential to Profile individuals: The Aadhaar Act does not prohibit law enforcement and intelligence agencies from determining behavioural pattern and profiling of individuals using big data analytics. This could lead to harassment of innocent individuals who get identified incorrectly as potential threats. Regarding Disclosure of Information: The guidelines relating to disclosure of information are weaker in comparison to the Indian Telegraph Act, 1885. The Act permits sharing information in the interest of national security rather than public emergency or public safety. National interest is a term which is too vague and ambiguous. And the other is that the order can be issued by a Joint Secretary instead of a Home Secretary. Discretionary powers to UIDAI: UIDAI has been given discretionary powers which means it can specify and collect other information as and when required without prior approval from the Parliament. For example, in future UIDAI may collect DNA from individuals. The time period for maintaining authentication records has not been specified. Maintaining authentication records over a long time period may be misused for activities such as profiling an individual s behaviour. UIDAI has exclusive power to make complaints: A person aggrieved by a breach of data has no remedy at his disposal. The Act states that no court shall take cognizance of any offence except on a complaint made by the UIDAI. Compensation: Unlike in the western countries, the Act does not have any provision for compensation to the person whose data has been compromised.

Conclusion

Aadhaar presents a unique opportunity for people-centric governance by improving the processes and outcomes. It not only helps in social and financial inclusion but also helps in maintaining fiscal deficits and reducing the burden on State exchequer. It a policy tool necessary for the upliftment of the marginalised sections of the society and inclusive growth.

Since its inception, Aadhaar has been criticised for breach of privacy. The validity of the Aadhaar Act has been challenged in the Supreme Court on the grounds of Right to Privacy. In 2010, the former chairman of UIDAI Mr Nandan Nilekani had written to the then Prime Minister of India Dr Manmohan Singh that India needs to have a data protection and privacy law. In a digital world, search and aggregation of data have become relatively easy.

Hence, it can be said that Aadhaar is necessary for efficient service delivery and governance but India also needs robust data protection and privacy laws like in the western nations.

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