by Joshita Pai
Despite formalizing a legislative structure for the ambitious Aadhaar project, several grave concerns surrounding the project remain unresolved. The recent passage of the Aadhaar Bill in the Lok Sabha, which rejected crucial amendments proposed by the Rajya Sabha, displays an utter disregard to the plea of balancing social welfare schemes with protection of several other rights.
The key issues around the Bill revolved mandatory furnishing of aadhaar number for securing benefits; overbroad executive powers to the UIDAI; reluctant privacy provisions; exclusion of a bulk of class of people in the aadhaar process; disclosure of biometric and demographic information in the interest of national security; precluding individuals from approaching the Court unless the UIDAI files a complaint in the Court; and provisions enabling private companies to require aadhaar as a proof of identity. It is also significant to note that the object of the Bill is to enable selective allocation of government subsidies on the basis of biometric and demographic information of an individual, but as Mr. Jairam Ramesh observed in the Rajya Sabha debate, an aadhaar number is a proof of identity and does not determine the eligibility of an individual to procure benefits leading to questions surrounding its introduction as a money bill.
The Bill is a development on the previous Bill presented in 2010 which was subsequently rejected by the Parliamentary Standing Committee, which in its report, noted that use of databases for government schemes akin to the UID project, should be preceded by a comprehensive legislation on data protection. The report very importantly noted that “estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour.” Both these issues remain unchanged in the backdrop of the present attempt to legislate the project. The committee, also foretold that although registration for aadhaar is voluntary, “an apprehension is found to have developed in the minds of people that in future, services benefits including food entitlements would be denied in case they do not have aadhaar number.” The Bill of 2016 in its existing form, solidifies this apprehension.
The core process of the project relies on biometric technology which is outsourced through private companies and contractors and the Standing Committee, in this respect raised concerns over such dependence on and nexus with private companies. Thomas Mathews, who has actively been involved in unpacking the working of the Aadhaar project, in one of his dozens of RTI queries, found that the Aadhaar project involves questionable interactions with US intelligence agencies and foreign companies for its operation.
The Bill provides an entire chapter on confidentiality of information but it falls short of incorporating crucial standards of privacy, such as purpose limitation and provision for contact details of privacy officer, notification of data breaches, which were emphasized in the Shah Committee Report on Privacy. Section 29(4) of the Bill allows for publication of core biometric information for purposes which will be specified by the UIDAI at a later stage. A crucial provision of this nature on disclosure of sensitive information has been left open ended.
The haste in passing the Bill against the ongoing proceedings in the Supreme Court on Aadhaar is objectively understandable but the issues emerging out of the project from the mandatory linking of schemes to the Aadhaar process, possible inaccuracies in the processed data, to security and privacy of centralized databases containing personal information have not, in the least been addressed. To add to this, the Bill bars an individual from approaching the Court unless the UIDAI takes cognizance of the offence. This qualified jurisdiction of the Court successfully snatches the right of an individual to approach the Court.
The proceedings in the Court is of paramount importance at this juncture since a judicial resolution of the concerns relating to aadhaar is going to be a crucial source of respite.
Joshita Pai is an alumnus of HNLU and is currently a research fellow at the Centre for Communication Governance at NLU-Delhi.