Aadhaar Bill: An Unconstitutional Legislation

It is often said that “privacy is not something that people feel, except in its absence”. Arun Jaitley realised it the hard way in 2013 when his telephone records where 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. Interference in the right to privacy is an interference in his personal liberty by a process which is not fair, just or reasonable. Every person has 'a right to be left alone'. In a liberal society there is no place for those who peep into the private affairs of individuals. No one has a right to know who another communicates with him...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.”

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The same Jaitley has now turned turtle; he has, through a extraordinarily dubious procedure, passed The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 in the Loksabha as a money bill. Among all the points that Jaitley raised in 2013, not one stands addressed in this Bill. In addition, a number of other questions arise from the parliamentary procedure adopted by the government. First, the Aadhaar Bill is not a money bill. It has been fraudulently introduced as a money bill in the Loksabha to ensure that the Rajyasabha, where the BJP does not enjoy a majority, does not send it to a multi-party Standing Committee for closer examination. 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, such as privacy. When fundamental rights of citizens may potentially be violated by a legislation, parliamentary procedures can not be reduced to farce.

The reasons why the Aadhaar Bill cannot be considered a money bill have been laid out brilliantly by P. D. T. Achary, a former Secretary General of the Loksabha. According to him:

“The bill does not deal with imposition, abolition, alteration, etc, of tax; nor does it deal with the regulation of borrowing or giving a guarantee by the government or an amendment in respect of any financial obligation to be undertaken by the government. This bill also does not deal with the custody of the CFI, etc. The moneys paid into or withdrawn from such funds are incidental. The bill is not an appropriation bill that appropriates money from the CFI. It does not deal with declaring any expenditure as a charge on that fund. Further, it does not deal with the receipt of money on account of the CFI or the public account, or the custody or issue of such money, or the audit of the accounts of the Union or states. It may also be noted that a bill becomes a money bill when it contains only provisions dealing with any of the above matters. If a bill contains any other matters, it is not a money bill.”

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, however, rejects the Court's position on whether Aadhaar is mandatory. As Jaitley mentioned in the Loksabha:

“It is an entitlement...I can't bar other authorities. For instance, if the RBI wanted to have under its act a provision that for a bank account you need a card; or, for admission to a government college you need a card, for identity; or to establish some other proof, you need a card...the Act doesn't debar that...”

In other words, notwithstanding the court's orders, the government is trying to make Aadhaar mandatory. The Bill also shadily preempts the Court's pending decision on whether privacy is a fundamental right. Jaitley appears to think that a matter sub-judice with a constitutional bench can be bypassed with the help of a money bill. This is nothing but 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 the Parliament into a joke.

Jaitley's assertion that privacy protection is embedded in Chapter VI of the Bill is laughable. The fallacy in Jaitley's argument is that clauses on “secrecy” in the Bill deal largely with biometric data collected and stored by the Central Identities Data Repository (CIDR). The potential of Aadhaar to violate privacy is not limited to data stored in the CIDR, but is a systemic concern. With Aadhaar becoming pervasive, multiple agencies – private and public – would begin to demand biometric information of individuals for collection, use and storage. While these agencies may partly use it for authentication with the CIDR, it would always be possible for them to also retain the information. We run a real risk, here, of biometric information attached to Aadhaar numbers becoming a commodity freely available for purchase. Biometric information left behind by the individual is only part of the cause for worry; what is also equally confidential is the information that an act of authentication was undertaken at a particular point in time by a particular individual with a particular agency. In other words, every individual, during authentication, leaves behind a biometric trail.

Jaitley's heroic assertion while replying to the debate on the bill in Loksabha was this: “Private agencies at times take a thumb impressions etc...even those have been protected as secret information under this Act. So, if you are private agency, which takes it, it can't be leaked out...” However, a close reading of the Aadhaar Bill shows that it does not address this concern with any seriousness except as a vague reference. In an era where biometric information of individuals is likely to be dispersed over a large number of places and agencies, only a separate and broad-ranging privacy law is the solution.

Why is the secrecy of biometric information so important? Because biometric security is no ordinary password/PIN security. When we lose a password, or when a password is stolen, we can change it into a new one. But biometric information can not be changed. Once it is stolen, there may be multiple spheres where security and privacy may be permanently compromised in a person's life. In 2014, hackers had shown that they could, in just two days, use an artificial fingerprint (made with wood glue and sprayable graphene) to unlock the Touch ID sensor of Apple's newly released iPhone 6. Jan Krissler, the hacker widely known as Starbug and who had performed a similar hack on the biometric security system of iPhone 5S in 2013, pulled another in 2014 on none other than the German Defence Minister Ursula von der Leyen. He used a high resolution photograph of the minister's finger from a press conference to reverse-engineer her fingerprint. According to Krissler, “I consider my password safer than my fingerprint… My password is in my head, and if I am careful when typing, I remain the only one who knows it.”

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 inividual ...”. 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. Jaitley was frank enough to admit this point during his reply address in the Loksabha. 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 failed Direct Benefit Transfer (DBT) scheme (for more, see “Mirage of Inclusion”, Frontline, October 3, 2014).

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 had stated:

“Congressmen are dancing as if [Aadhaar] was a herb for all cures. With the Supreme Court pulling up the Centre, people are now seeking answers from the Prime Minister who should disclose how much money had been spent...Prime Minister Manmohan Singh should answer how much money has been spent on it, where did all the funds go and who had benefited from it”.

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's “pulling up”? 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”!

(R. Ramakumar is Professor at the Tata Institute of Social Sciences, Mumbai.)

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