Spy’s Eye: Aadhaar-Valid but not compulsory

The Supreme Court's verdict on the contentious issues raised around the implementation of Aadhaar has drawn a firm line between the essentials and non-essentials of the unique identification scheme that had been adopted through the Aadhaar Act of Parliament, in July 2016. The Act made UIDAI a statutory body — it had been established earlier through a government notification in 2009 to oversee the process of issue of the biometric-based ID and the maintenance of its security. The Apex court has upheld the validity of the unique identification but defined the purposes for which alone the scheme will be utilised-striking down in the process the order of the government that had made Aadhaar compulsory for pursuit of such activities as the judgement has now brought under the protected sphere of privacy. The bold-but-balanced verdict has demonstrated judicial insight and objectivity-evidence of this coming in the form of a rare response in which both the government as well as the opposition have claimed vindication of their respective stand.

A democratic State has on one hand the responsibility of knowing who its citizens are so that it can detect 'aliens' including those who might have managed to stay unauthorisedly for devious aims and the onus, on the other, of reaching out to individuals who needed 'welfare' assistance from the State. Of these two fundamentals, only the second seemed to have guided the Supreme Court which recognised the important duty of the democratic State to look after the poor and the weak needing special attention, on the basis of a proper identification so that diversion of welfare funds was effectively stopped. It is this focus that has induced the Supreme Court to accept the government contention that Aadhaar Act was a money bill not requiring concurrence of the Rajya Sabha.

The Supreme Court has struck down Sec 33(2) of Aadhaar Act as unconstitutional and thus not upheld the authority of the government to access data through the order of an officer not below the rank of joint secretary — specially designated to write to UIDAI in this regard on the grounds relatable to national security. Moreover, the Act had extended Aadhaar to banking, mobiles, education etc possibly with the intention of detecting surreptitious activity but this approach of ensuring 'total coverage' to detect a few malcontents in these spheres has not gone well with the Court on the ground that the move impeded the right to privacy that was earlier endorsed as a fundamental right by the Supreme Court at its 9- Member Bench in August 2017.

The judgement has struck down the government directive about Aadhaar card being made mandatory for running bank accounts or securing a SIM card for the mobile and forbidden other corporate identities in fields like education, health, travel and insurance etc from insisting on its production.

Concern for protection of private data against misuse for business purposes has apparently impacted the judgement in line with the verdict of the Constitutional Bench on the right to privacy. Aadhaar, however, will apply to PAN card for the reason that it was linked with tax payment — an essential obligation placed by the State on a class of people. Incidentally, there were other State — authorised-identity cards like passport and driving license which covered only sections of the citizenry.

If the government thought that the State needed to bring the entire citizenry under the unique identification for reasons of strengthening the cause of national security this does not seem to have cut ice with the Court. The judgement has diluted the national security requirement by laying down that those who did not want any subsidy from the government had the option of not taking the Aadhaar card. The Supreme Court has obviously seen Aadhaar as a compulsion only for the purpose of welfare outreach of the government. There seems to be a lurking suspicion in the minds of the judiciary — expressed clearly by Justice Chandrachud in his dissenting judgement -- that making the Aadhaar compulsory for all citizens could lay the ground for the rise of a 'surveillance state'.

The validation of Aadhaar per se as a legitimate identification for Indian citizens puts on the government a huge onus of protecting the personal data in its possession from unauthorised access of commercial players and enemy agents. The entire gamut of cyber security protocols has to be looked into, responsibilities delineated and a strong security administration put in place at the UIDAI — the custodian of the sensitive record. The Court has struck down Sec 57 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 — which allowed sharing of data with private parties — to uphold the right to privacy and minimise the possibilities of private entities trying to monetise any kind of personal information. The question of preventing such entities — which already had stored a vast amount of personal data — from misusing it in any way has rightly been raised by cyber experts as a major legal challenge for the government. Aadhaar ecosystem has to be provided fool-proof security so that any state or non- state actor wanting to target India will find it difficult to access the data there for that objective.

On the whole it is the right to privacy that has overruled the stand of the government that a compulsory unique identification given to all citizens was essential for preserving national security, making financial transactions transparent and encouraging Public- Private partnership in bringing various services to the people for their own good. In recent times serious concerns have been expressed over the unethical practices adopted by the world of business for commercialisation of personal data. In a sense Aadhaar can now be used by the state only as an instrument for ensuring that the welfare aid of the government reached its rightful targets and a huge channel of corruption was closed more or less. For detecting suspects and suspicious transactions the regime will have to strengthen the cyber security domain and rely on its Intelligence and Security agencies. The capabilities and wherewithal of the latter will have to be enhanced through greater investments.

While Indian masses will feel good about having Aadhaar that gave them recognition as shareholders of the state there is no gainsaying the fact that protection of personal data was a prime concern of the thinking lot. Providing this protection is a challenge of gigantic proportion for the government particularly after the expose of firms like Cambridge Analytica that established how 'profiling' of voters could be successfully done on the basis of personal data. The Supreme Court is apparently of the view that the minimal details included in Aadhaar card need not generate the fear of 'profiling' provided a strong security regimen was created for UIDAI. The Law Minister of India has therefore done well to order immediate detailed examination of the existing security infrastructure and procedures and their up gradation without loss of time.

In a nutshell the Supreme Court has pronounced that Aadhaar is valid but not compulsory.

(The writer is a former director of Intelligence Bureau)

DC Pathak