16, Oct 2019 | Sanchita Kadam
The State on numerous occasions has tried to impose the use of the Aadhaar card upon the citizens. While, the Supreme Court has upheld a few of such mandates of the State, the question of whether the imposition is valid on few other services keeps coming up before the Courts of the land vide myriad petitions, rendering the rhetoric of the Aadhaar in limbo.
On October 14, the Supreme Court refused to entertain a plea by BJP leader Ashwini Kumar Upadhyay seeking directions to the government and few of its agencies to make it mandatory to link social media accounts with Aadhaar to ‘combat the menace of paid news and fake news’.
The Aadhaar card, with its Unique Identification Number, at its inception was an identity document meant to be a means for inclusion. The Act itself is called The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. The nomenclature of the law suggests its purpose quite clearly but the government’s employment of the card in the past few years across avenues has raised several questions regarding the validity of such use as per the Act and its constitutional validity.
Among CJP’s four pillars is Freedom of Expression. Right to Privacy is vital for this. Aadhaar was deviced as a unique identity for each Indian citizen in order to better manage the distribution of public welfare schemes. However, privacy concerns have always been raised in connection with Aadhaar. Right to Privacy is now a fundamental right as it was held to be a part of Article 21 of the Indian Constitution. CJP respects the Supreme Court judgment and the Indian Constitution and is committed to protecting our rights and freedoms. Donate now to support us.
Mr. Nandan Nilekani, back in 2010 in an interview with Civil Society Online had said, “The purpose of this programme is very clear. It is about inclusion. It is about the fact that there are a few hundred million people in this country who don’t have any form of identity, who don’t have a birth certificate, who don’t have a school certificate, 75 million homeless people…they are the ones who are suffering due to lack of identity.”
In the light of the petition seeking linking of social media accounts to Aadhaar, and in times where the Aadhaar data has been breached due to illegal practices of third parties, here’s a brief analysis of the government’s mandate on linking of Aadhaar to various services and its effects.
Aadhaar for PDS
Recent incidents are however proof that the arrival of the Aadhaar Card has done the opposite of what it intended to do: inclusion. The Supreme Court, in its September 2018 judgment, has held section 7 of the Aadhaar Act to be constitutional and held thus, “Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication.”
Following this, many state governments made production of Aadhaar card/ Aadhaar number mandatory at government run ration shops in order to procure monthly assigned ration. SabrangIndia reported that as per a survey conducted by the Right to Food campaign, as many as 272 families in Odisha’s Nabarangpur district did not receive their quota of foodgrains for the months of September and October because of discrepancies in linking their Aadhaar numbers to the public distribution system. Scroll also reported that the Right to Food campaign compiled data of starvation related deaths in the past year across 9 states and found that 19 of the 57 deaths were Aadhaar related deaths. Aadhaar related starvation is manifested in many ways like ration card is not linked with Aadhaar card or failure of authentication of Aadhaar biometrics, all of which ultimately means they cannot benefit from the subsidy scheme as per the National Food Security Act.
Aadhaar for Direct Tax filings
The Supreme Court had in its landmark judgment of 2017 upheld individual’s right to privacy and temporarily halted government’s attempts to make the Aadhaar card a mandatory document for all purposes. The Apex Court in its 2018 judgment, however upheld the linking of Aadhaar card for income tax purposes in order to help the government in curbing incidents of tax fraud and to eliminate the menace of black money. Accordingly, the linking of Aadhaar card to the PAN card has been made mandatory, failing which one’s PAN no. shall become inoperative, and a deadline of December 31 of this year has been set, which is an extension of already set deadline of September 30.
Aadhaar for SIM cards
The Central Government vide The Aadhaar and Other Laws (Amendment) Bill, 2018 made use of Aadhaar for verification as an identity document voluntary for banking companies, financial institutions and intermediaries, as well as telecom companies. The implication of this amendment was that telecom companies, banks and other financial institutions and intermediaries cannot make production of Aadhaar card mandatory for purposes of verification of identity of an individual in lieu of providing any kind of services.
However, this move came a little too late as many citizens had already linked their Aadhaar cards to their SIM cards and Bank accounts following Centre’s directive in this regard in 2014.
Aadhaar to vote
The Wire, had in its report analysed what means were used by the Election Commission (EC) in 2015 to link voter’s Aadhaar cards and whether informed consent of voters was sought. The EC launched the National Electoral Roll Purification and Authentication Program (NERPAP) whose aim was to eliminate voter fraud and cases of duplicate voter IDs. The program was shut down by the Supreme Court in 2015, however, by that time, the EC, had already collected the Aadhaar numbers of over 300 million voters in a span of three months. In order to complete the herculean task in three months, the EC accessed the National Population Register in some states for seeding the Aadhaar data in some other states it used DBT Seeding Data Viewer (DSDV) tool, a service that allows third-parties to view non-biometric identity data held by the Unique Identification Authority of India (UIDAI).
In July 2019, the Delhi High Court had dismissed the plea of Ashwini Upadhyay of the BJP seeking linking of voter IDs to Aadhaar cards, by asking the EC to take a decision in this regard within 8 weeks. It was recently reported that the EC is seeking to get legal sanction on the Aadhaar – Voter ID linkage as it has made a proposal to the Ministry of Law to allow it to collect Aadhaar details of new voters as well as of existing voters.
Aadhaar and Social Media
The Aadhaar Act provides the usage of Aadhaar identification mainly for the purpose of better distribution of social benefits and hence, if Aadhaar is to be linked to social media accounts, the current piece of legislation is incapable of dealing with it and a new legislation, if at all, will have to be formulated and the same being a matter of legislation does not warrant a full fledged role of the judiciary.
A commentary in the Economic Times said that as a country, we must focus on investing on research to develop the technology to save our virtual space and not open our data for any misuse. It further pointed out that there is no “private” internet space for India per se and hence giving out such a pertinent ID number will expose user data to myriad threats in the cyberspace. Mahua Moitra, the MP belonging to Trinamool Congress, who has always been outspoken about pertinent issues, has taken a stand against the linking of Aadhaar card to social media accounts and traceability of social media messages and seeks to implead herself in the case pending in Madras High Court. Mahua further said, “Technically skilled persons will always be able to use simple workarounds to mask their own phone numbers, or instead link messages to someone else’s number; technically unskilled individuals and laypersons would also be made more vulnerable by having their contact information exposed, thereby further eroding online safety and privacy norms.”
Who is ‘Aadhaar’ really ‘supporting?
The more widespread the network of linking Aadhaar, the more are the chances of the same being breached making citizen’s data being subjected to serious danger. The linking of Aadhaar card to services seems to have become some kind of political fashion, which is portrayed to people as a requisite for their security, while the resulting outcome is a stark contrast. The State is trying to portray itself taking up a paternalistic role by showcasing that surveillance is its only objective but even if the objectives of the government are assumed clean, such kind of surveillance only subjects the people and their data to grave peril.
The Aadhaar debate is still on going, there is no absolute judgment by the apex court to determine what can and cannot come under the mandatory purview of Aadhaar, neither has it given any directions to the central government to amend the law in that regard and hence, this Pandora’s box has opened up. What remains to be seen is for how long will the Supreme Court keep entertaining petitions against mandatory use of Aadhaar and to what extent will it uphold the right to privacy that it so commemoratively affirmed.