Dangerous Expansion of Aadhaar Despite Shaky Record

The NDA Government has recently announced that Aadhaar numbers will now be compulsorily linked with Permanent Account Numbers (PAN). Legal Researcher Usha Ramanathan speaks with NewsClick on how the Centre is undemocratically widening the ambit of the bio-metric project despite its shaky record on privacy given the recent massive data breach in some states.  

Rough Transcript

Srujana: Hello and welcome to Newsclick. Today we have here with us, Dr. Usha Ramanathan. To speak about the Aadhaar issue that has been in the news recently. Dr. Usha, Supreme Court currently is hearing a plea on Aadhaar being made mandatory for income tax returns and pan card. Can you explain a little about it?

Dr. Usha Ramanathan: See the UID case has been in the court since 2012 and at least 6 times the Supreme Court has categorically said that UID should not be made mandatory. In August 2015, the court went one step further because the government was not listening at all. The court went one step further and said that not only can you not make it mandatory, you can only use it for PDS and LPG and nothing more. And this was also provoked by the government going to the court telling the court that people of this country do not have a right to privacy. The question that of course is raised is why the government needs to say that there is no right to privacy for carrying on a project like the UID project. Are they going to deny what is it that they intend to take away? And in October 2015 the government went again to the court and said that they wanted to expand this to a few more uses. So the court at that time, the five judge bench has given an order saying that you can expand it to four more uses but you can’t do it more than that and even in these six uses, it can be voluntary. It cannot be mandatory. And secondly they’ve said all the orders that have been made by the court so far, should be followed by the government. And in 2016 March they passed an order through a money bill which is also in challenge before the court.

They’ve passed a law saying, and through a hurried kind of introduction, late introduction of multiple clauses in finance bill, they have now said that, they have gone one step further because they have said that you can’t pay your income taxes unless you have your UID number and you have to attach your UID number to the pan card and if you don’t do it, they will cancel your pan card. So now they have, the poor have been told that if your bio-metrics doesn’t work then you don’t get your food and many people are not getting their food. Now the others are being told that if you don’t give this information and don’t reveal yourself to the government, they are going to cancel the pan card. The reason that they give is that this is, you know they want to get rid of duplicates. Now when you look at the number of duplicates as they themselves have said in Parliament- in 2007 there was an answer, in 2016 there was an answer- something like 0.4% or 0.04%. It’s like 11 lakhs out of 250 million. So there is no way that there is a reasonable connection between the object that they think, that they say they want to achieve and the kind of moves they are making. The whole approach seems to be that the state owns everything that we have and they can take what they want whenever they want it. This is an extraordinary assertion of power.

Srujana: So the Supreme Court at least from the press accounts, Supreme Court seems to have said that Aadhaar cannot be mandatory for welfare policies but where as it can be made mandatory for bank accounts and pans, how accurate is that?

Dr. Usha: It’s a misunderstanding of what happens in a court room and what happened on that day. So on the 27th of March; the case was to have been listed where petitioners were going to the court to ask that section 7 of the Aadhaar Act should be stayed. What is section 7 of the Aadhaar act? It’s says that you can make it a condition, that’s a provision under which you can make it a condition for getting any services or any entitlements that you have, you know benefits, services, and subsidies; to get that you can make it a condition that a person should have a UID number which they will then or you have to go and enroll for the number. They wanted that to be suspended. Now when the court was looking at, this is done at what you call the ‘mentioning time’.  Now on the 27th of March although it was listed, it got taken off the list and they were told that it’ll be on the 3rd of April. So the lawyer went to the court merely to tell the court that listen, please make sure that it comes up on the 3rd because it’s an urgent kind of thing, we need to have it heard. During that time the court says so what is this, what is this last order and they were looking at the October 15th order. And you must remember that they’d not looked from September 23rd you know through the six orders, they only saw the last order. The last order was taking off from the August 11th order. August 11th order is the order that gave the final kind of directions in that. Here all they did was to say that the attorney general is guaranteeing that it’ll be voluntary so how does it matter if we just add four more services to it. So they added, on August 11th the court had been, I don’t think the court was very happy with the government going to them and saying that the people of this country don’t have a right to privacy. So it’s during that time that the court so ok, we will have it heard by larger bench. But in the meantime you cannot use this. You can’t compel people to enroll and because the attorney general said ‘the poor don’t have an identity’ they said ok, so where do you want to use it? He said PDS, they said ok. He said LPG, they said ok. Then he said NREGA, they said that’s it. Because there are many other challenges that are there to this project. Including matters of surveillance, including matters of national security, including matters of convergence, of profiling, multiple challenges that there are. So they said you can’t use it anywhere else because you can’t render infructuous serious issues that have been brought before the court. That was the August 11th order. Then on August 15th all that the court did was to expand the two categories into six categories, that’s all. So what did it mean? You can use the UID-the government can use it in six situations and nowhere else. So in those six situations, they were saying that even there you have to make sure it is not mandatory but voluntary till the court has finally heard and decided the matter. This was there. These are two judges who are not part of the earlier bench; they have not seen all the papers. So the judges looking at their case are saying that oh it says that it should voluntary for all of this; so that means it can be mandatory for the others. It’s like an observation that is made by a judge who is just looking at a last order and not at the whole case. Now if the judge has intended that it should become an order, then you, you state that this is an order, right?

There are two things to remember. One is that there is no order. It was an oral observation which then the counsel for the petitioner had gone ahead and explained that this is not what it was. Second thing to remember is that this was two judges sitting as a bench. That 15th October order was passed by 5 judges and among the things they had said was that all the orders from September 23rd should be respected and should be followed by the government.

Srujana: Recently we have been hearing of lot of data breaches. That lot of data bases from the government has come out into the public. Can you explain a little about it?

Dr. Usha: This UID, there are two parts to this project, at least two parts; there are multiple parts but two main parts. One is that, it is about the biometrics. The other part is about what is called seeding. Seeding means putting this number in every data base. Both of them are problematic; biometrics is a problem. First of all it is untested technology. Secondly it is forcing us to, like the lawyer has been arguing at the court now, it is saying that the state has sovereignty over our bodies and whenever they say come and give your fingerprint, give your eye, you just have to give it, you don’t have a choice. So this assertion of sovereignty is one huge problem in the context of biometrics and other thing is that since its untested technology; as we have been seeing, large numbers of people are not able to access what is their entitlement because biometrics is being used on them, so this is the poor.

One the other side you have this whole thing of seeding. Now seeding is about state, state surveillance, creating mechanisms for convergence of data; corporates have a huge interest in this because if they’re able to converge data and to be able to pick up what they want from wherever, the trading on data will continue. So the seeding is a very important part of what they want should happen. But it is dangerous for the people to have seeding done. Interestingly, when the Aadhaar Act was passed in 2016, it allowed for only two kinds of uses. One use was where they said that it is for authentication which means that; I go, I give my number, I give my biometric, the central CIDR will say whether it matches or not; is it me, is it not. That’s it. That’s one set of uses.

The other use that they say which has actually expanded what they said in the beginning because initially they said no data will be given by the UID data base; they brought in E-KYC and made it possible for the data to be given. Now what is this data when you go, you give your number, you give your biometric, it is sent to them. You’re supposed to give your consent to the information being sent; that is, whatever is on their data base to be sent to the user agency. So that’s how Jio for instance has been collecting its – where the consent is I don’t know because most people don’t know what they are consenting to. But anyway, that data can come in. These are the only two uses. Neither of these talks about or permits the seeding of the number in the data base. If the biometric cannot be retained, you cannot retain the number either. What has in fact been done by the state and what is rampantly in practice is – in fact you know all these are places where they’re saying put your number. Putting your number in multiple databases is what creates potential for surveillance; it is very clear breach of privacy, there are no norms at all on how all this can be traded and what in fact is happening.

There is an interesting clause in the Aadhaar Act. It’s section 2 K which says that the demographic information that is collected about people shall not include information about race, caste, religion, income, medical records, these will not be collected by the UIDIA. Why do I say that? Because the moment you have all that information attached to a number, it profiles the person. So they are saying we are not profiling, we are just identifying. And then you put that number in every data base and the profiles get created. Now you have the Human Resource Development Ministry which is collecting data from teachers saying that there are lots of fake teachers and they want to create a national portal of teachers. So they are asking everyone to give their UID number along with their caste, their religion, their phone number; all this kind of information is now being collected and it is being attached to the UID number, the UID number is being attached to it. Now you put all this data in different silos and then you upload these silos. So many of these people, it’s not the HRD data base but you’ll find that there are multiple other data bases that have been made public. And as you would know, and I don’t need to explain this here, that when you have in the digital world, in the digital age, once you put it up even for 5 minutes, multiple people would download this information. So the security of that information has got deeply compromised.

Srujana: So apart from the security of the data bases itself, how good is the biometric technology? Because we have been hearing that the workers of MNREGA are unable to access their wages because their fingerprints were unable to be authenticated

Dr. Usha: You know its different stages that we have to worry about. There are many people who are not able to get on to the system, on to the UID although they’re going enroll because it’s not like they’re dying to enroll but since they don’t have a choice, there are people going to enroll. Many people who are unable to get on to the system because it’s not accepting their biometrics for whatever reason. Once you have got on and you’ve put your number into the system, when you go to access wages, your biometrics has to work every time. And if it doesn’t work, they say go and re-enroll. You know when you have fingerprints that don’t work; so you actually had Mr. Nilekani give an explanation. When he was asked about Andhra where they said its 36% rejection rate, he explained that it’s not 36% rejection; it means 36% of the times that people have come to authenticate. Which means what? That same person may have come three times because you go once, it doesn’t work so you go a second time it doesn’t work. You go a third time so each of those is calculated as one. So he says it’s not as if 36% of the people are losing out. So he says anyway if that happens to fingerprints, there is iris. And if iris doesn’t work, there is OTP. So a person must have a mobile phone which has the same number which is on the UID data base and if that doesn’t work, you have the local Muncif. This is not me saying it, this is Mr. Nilekani offering this; saying it’s not a problem at all, everybody can get whatever because this is how we work on it.

Srujana: Thank you Dr. Usha. Thank you for coming.

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