All pervasive Aadhaar raises serious privacy concerns

It is often said that “privacy is not something that people feel, except in its absence”. Finance Minister Arun Jaitley realised it the hard way in 2013 when his telephone records were illegally obtained by the government.

In an article titled “My Call Detail Records and A Citizen’s Right to Privacy”, Jaitley wrote: “Every citizen in India has a right to privacy. His right to privacy is an inherent aspect of his personal liberty...”

We are now entering the era of the Aadhaar number. The government has recently made the existence of the Aadhaar number as a condition precedent for undertaking several activities– from registering marriages to execution of property documents.

Will those who encroach upon the affairs of others be able to get access to bank accounts and other important details by breaking into the system? If this ever becomes possible, the consequences would be far messier.”

The same Jaitley has now turned turtle; he has, through an extraordinarily dubious procedure, got passed The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 in the Lok Sabha as a money bill. Every point that Jaitley made in 2013 stands unaddressed in this bill. First, Aadhaar Bill is not a money bill.

The Aadhaar Bill could have been considered a money bill if it had dealt only with the flow of money in and out of the Consolidated Fund of India (CFI). However, the bill deals with much more. Implementation of Aadhaar raises strong possibilities of infringement of the fundamental rights of citizens like privacy. When fundamental rights of citizens may potentially be violated by a legislation, parliamentary procedures cannot be reduced to farce.

Secondly, the question of whether privacy is a fundamental right is currently under the consideration of a constitutional bench of the Supreme Court. Further, according to the court, Aadhaar is not mandatory and no citizen should lose his rights/benefits for not possessing Aadhaar.

The bill rejects the court’s position on whether Aadhaar is mandatory, and shadily pre-empts the court’s pending decision on whether privacy is a fundamental right.
By this act, Jaitley’s government has expressed its utter disregard for the Supreme Court. What if the bench decides that privacy is a fundamental right and Aadhaar is not mandatory? Jaitley’s government, then, would have reduced Parliament into a joke.

Jaitley’s assertion that privacy protection is embedded in Chapter VI of the bill is laughable. The fallacy in his argument is that clauses on privacy protection in the bill deal only with the biometric data collected and stored by the Central Identities Data Repository (CIDR). The potential of Aadhaar to violate privacy is not limited to CIDR, but is a systemic concern.

With Aadhaar becoming pervasive, the collection, use and storage of biometric information of individuals would also become pervasive across multiple agencies, private and public. Every act of an individual, including authentication, would leave behind a biometric trail. The bill simply does not address any such concerns.

Biological attributes?

The Aadhaar Bill also has a dangerous wording of the phrase “biometric information” in Chapter I. It is defined as: “photograph, fingerprint, iris scan, or other such biological attributes of an individual ...”

We are aware that only a photograph, 10 fingerprints and two iris scans were collected during Aadhaar enrollment. What are these “other such biological attributes”, when no such attribute was actually collected? Is this a reference to the proposed and hugely controversial Human DNA Profiling Bill of 2015?

Will the government now begin to collect and store DNA samples of citizens and then argue that the Aadhaar Bill provides it with legislative sanction? No clarifications have been provided. Jaitley, in his urge to curtail democratic discussion, has probably pushed in a draconian law.

Jaitley's positioning of the Bill as pro-poor and welfare-oriented is nothing but a clever ploy to mask the real intentions behind the Bill. I have argued elsewhere, from 2009 itself, that the real intention behind pushing the Aadhaar project is not to improve welfare or reduce poverty, but to effect a neo-liberal transformation of the state's role in the social sector. Such an objective has two elements, both of which are constitutive of neo-liberal policy in India.

The first is a shift from universalism to targeting. Aadhaar is not intended to expand social service provisions. Its aim is to keep benefits restricted to “targeted” sections, ensure targeting with technological precision, and thus limit the government's fiscal commitments. The second is a shift from direct provision to indirect provision of services.

Here, existing institutions of direct intervention are dismantled, and replaced by new institutions of indirect provision intermediated by the market. Aadhaar, as claimed, is not a tool of empowerment; it is actually an alibi for the state to leave the citizen unmarked in the market for social services. Here, Narendra Modi's JAM (Jandhan-Aadhaar-Mobile) trinity is nothing but a rehashed version of the UPA government's Direct Benefit Transfer (DBT) scheme.

It is interesting to remember that Modi too, like Jaitley, was opposed to the Aadhaar project. At the BJP's rally in Tiruchirappalli in September 2013, Modi was strongly critical of Aadhaar.

Why has Modi jumped into the Aadhaar bandwagon now after claiming that it was no “herb for all cures”? Why has his government suddenly lost respect for the Supreme Court? In my view, the answer is simple. After coming to power, Modi has realised the utility of Aadhaar as an instrument to further entrench a neo-liberal social policy. No wonder the UPA and the NDA are called the “neo-liberal twins!”

(The writer is Professor at the Tata Institute of Social Sciences, Mumbai)