Aadhaar: A unique problem of identity

The Supreme Court’s refusal to modify its August 11 interim order and allow the use of Aadhaar for welfare schemes other than PDS and LPG schemes has put the spotlight back on the identification project. Ruhi Tewari and Utkarsh Anandexplain

The initiative

Launched in 2009 as a pet project by the Congress-led UPA government, Aadhaar provides a unique 12-digit identity number based on biometrics to every resident of India. The idea was to make this number the basis of multiple schemes, initiatives and welfare programmes. On January 1, 2013, the UPA government launched the Direct Benefits Transfer scheme, which linked the transfer of benefits such as PDS and LPG to Aadhaar. While there was speculation about the fate of these schemes when the NDA government came to power, Prime MinisterNarendra Modi moved to make Aadhaar the basis of several of his initiatives, including the Digital India initiative and services such as banking and telecom. However, the Supreme Court’s reluctance to allow the government to expand the scope of Aadhaar has come as a setback to the government.

Case in court

The first petition challenging the validity of Aadhaar was moved in the Supreme Court by K S Puttaswamy, a retired judge of the Karnataka High Court, who alleged there was no legal sanctity to the UID numbers since the National Identification Authority of India Bill was still pending in Parliament. The PIL said the collection of personal data by the government not only violated the citizen’s fundamental right to privacy, it was also an executive act in overreach of Parliament.

In December 2012, the court issued notices, seeking responses from the Centre, the Unique Identification Authority of India (UIDAI) and others. Subsequently, other similar petitions were bunched together.

The first interim order came in September 2013, when the apex court said no person shall be deprived of social benefit schemes for want of Aadhaar and that it cannot be made mandatory for the delivery of any services. The second interim order was issued on August 11 this year when the court said that Aadhaar will not be used by the authorities for purposes other than PDS and the LPG distribution system. It added that information collected so far would not be shared with any agency and that the government would give publicity in the media that it was not mandatory for a citizen to obtain Aadhaar. This three-judge bench also decided to refer the matter to a larger bench to dwell upon a constitutional question.

Privacy: Fundamental or not

The case was referred to the Constitution Bench since it involved the privacy debate. It has been alleged that the biometrics database collected by UIDAI was not secure since private agencies were involved in collecting the personal information of individuals without any supervision by the government or its pertinent wings. Further, it was argued that by collecting personal information and biometric data, the project violated the individual’s right to privacy.

The government has, however, questioned whether right to privacy is a fundamental right. It has accepted privacy to be a valuable right but has sought to dispute the petitions which have built their cases on the argument that Aadhaar violated the fundamental rights of citizens.

In 1954, an eight-judge bench ruled that the right to privacy cannot be a fundamental right but some judgments on the subject since the 1990s had noted that the right to privacy can be construed as a fundamental right subject to certain restrictions and circumstances. It is in these circumstances that the issue has been referred to a Constitution Bench.

Arguments, against and for

Besides concerns about privacy, opponents of Aadhaar have argued that instead of ensuring inclusion, it had become an instrument of exclusion by denying services to people who didn’t enroll for it or chose not to.

The government and UIDAI, meanwhile, say Aadhaar is the most widely held identity document in the country with around 92 crore people under it. Restricting its voluntary use, they argue, would mean a majority of the population will not be able to use it to access various social schemes. They say it will impact nearly 1 crore workers under MGNREGA, who use Aadhaar to withdraw their wages every month, and nearly 30,00,000 pensioners. Countering the privacy argument, UIDAI says the data captured is secure and encrypted right at the source and all biometrics are stored in the Government of India’s servers with “world class security standards”.