On Aadhaar: Part III (The ‘Exclusion’ Concern)

By: Digvijay Chaudhary

The Aadhaar Act (hereinafter ‘the act’) and the Aadhaar project facilitates exclusion. It means that instead of receiving benefits and entitlements as part of the act, people are excluded from receiving such benefits, subsidies and entitlements. To emphasise, entitlements flow from Part IV of the Constitution (Directive Principles of State Policy), not from the act; Article 37 of the Constitution provides that the principles laid down in Part IV “are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” Benefits, subsidies and entitlements made available by the state to serve the basic and essential needs of the people, especially those below the poverty line are fundamental to their right to life guaranteed under Article 21 of the Constitution. By insisting upon Aadhaar as the sole proof of identity (making Aadhaar mandatory), the act unreasonably restricts the rights of the people who are otherwise entitled to receive such entitlements. It, therefore, infringes upon the fundamental right to life under article 21 and hence, is unconstitutional.

Further, the access to the enrolment centres in rural areas is limited, and especially those people who are incapable of travelling are excluded from the enrolment procedure and eventually from the benefits. Also, the concern around the usage of biometrics adds fuel to exclusion. Biometric data is imperfect; they need state of the art machinery for record and storage of such data and moreover, a person’s biometric changes over time. External factors such as oil, dust and moisture can alter the biometric of a person, add to this the fact that a major population of the country is involved in agriculture and labour. This flawed authentication process leads to denial of benefits.

The right to receive entitlement is directly related to the circumstances/situation/status of an individual, as defined under various statutes. No benefits can be denied, especially to those below the poverty line, on the basis of a statute, that at best serves as a procedure for identification. Identification of a person is only an aid for, and incidental to a person’s right to receive the entitlement. Aadhaar excludes people from their database and therefore, from the benefits. As we discussed above, about Aadhaar becoming a connecting link between all the essential services, this also implies that lack of Aadhaar (through authentication failure or loss of Aadhaar) means denial of benefits guaranteed by the constitution and other laws.

A majority of the exclusion argument is based on the enrolment procedure. When a machine captures biometrics, it records a minimum amount of points which guide it to form the whole fingerprint. These points are known as minutiae. A minimum number of minutiae being captured will not be accurate in identifying an individual and may even lead to common biometrics. But the machines used in the enrolment procedure are cheap and capable of capturing only fewer minutiae. This leads to an individual being denied benefits because the machines are then unable to identify an individual after capturing such few minutiae. Eventually, exclusion follows. Regarding the same, there were reports that suggest that people have been excluded due to enrolment failures. Further, authentication failure and bad implementation are the reasons for exclusion. Poor internet connectivity is often responsible for authentication failure and may result in people having to authenticate times.

Section 7 lies at the heart of exclusion, it reads as follows:

Section 7: The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of aadhaar number or in the case of an individual to whom no aadhaar number has been assigned, such individual makes an application for enrolment: Provided that if an aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service.

It has to be understood that authentication is at the heart of the act and in case of authentication failure, section 7 provides for other means of identification for the delivery of the subsidy, benefit or service. However, alternatives cannot be provided for people who have been issued an Aadhaar number. The use of Aadhaar number is subject to the authentication process. The interpretation, that the above section uses the word ‘or’ to segregate authentication from Aadhaar is incorrect. The problem is that the statute doesn’t list in order of priority i.e. authentication will be first preference, the furnishing of Aadhaar will be the second and furnishing of enrolment number, third. Further, it doesn’t contemplate any cases for authentication failure. The scheme of the act requires authentication. Any act, even with the best of intentions, discriminates and excludes, is ultra vires of Part III of the Constitution. In cases of authentication failure, there is no recourse to judicial remedies because of the ‘disintermediation’ of the State and the fact that inability to access courts is an overarching theme of the act.

Then there is a very improperly/urgently drafted provision in the act; section 23 (2) (g) which is laid below:

Section 23(2)(g): omitting and deactivating of an aadhaar number and information relating thereto in such manner as may be specified by regulations.

The above section gives the UIDAI the power to deactivate an individual’s Aadhaar number and hence, deny him/her the benefits that are dependent on it. As one of the aims of Aadhaar is to weed out duplicands from the system (de-duplicate), the necessity of this provision can be understood. This section has been further expanded through regulations which specify all the conditions required for de-activating Aadhaar of an individual. However, the provisions of the regulations indicate the sweeping powers of the government and its ability to exclude a person from the benefits that he/she is legitimately entitled to. Regulation 28 provides for deactivation, however, the concern here is regarding rural areas, where procedural delays could result in ‘civil death’ of a person. These entitlements are connected to the status of a person and not his/her identity and such, the one nation – one ID scheme is reducing an individual to his/her identity under Aadhaar. People have been denied benefits under the PDS scheme or pension entitlement due to recurring difficulties in biometric authentication; a person will be regarded as a ‘ghost’ in the system if he/she does not possess an Aadhaar card.

It would be interesting to note that in 1998, the Philippine Supreme Court ruled that a national ID system violated the constitutional right to privacy. In 1991, the Hungarian Constitutional Court ruled that a law creating a multi-user personal identification number violated the constitutional right of privacy. The French Constitutional Council found the law proposing the introduction of a new biometric ID for French citizens as unconstitutional.

The European Union has reiterated time and again regarding concerns about whether access to and use of data are tailored to specific legitimate aims also raise questions about the increasing reliance of Governments on private sector actors to retain data “just in case” it is needed for government purposes. Mandatory third-party data retention – a recurring feature of surveillance regimes in many States, where Governments require telephone companies and Internet service providers to store metadata about their customers’ communications and location for subsequent law enforcement and intelligence agency access – appears neither necessary nor proportionate.[1]

These concerns around the Aadhaar act call for a stronger data protection law (which we’ll be discussing in length in the last part) in place and also a better act to regulate the Aadhaar scenario that the government has created in the country.

[1] Opinion of the Advocate-General Cruz Villalón of the Court of Justice of the European Union in joint cases C-293/12 and C-594/12; CCPR/C/USA/CO/4, [22].

(Digvijay is currently a student at Dr. Ram Manohar Lohiya National Law University, Lucknow.)

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