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The Curious Case of Aadhaar

Ever wondered, if the concerned issues pertaining to an Act are not addressed properly, what would be the possible aftereffects? Uh.huh! Obamacare is here to tell you the long story cut short. Aadhaar, the world’s biggest biometric ID programme ever, if conveys the story of successful implementation of a scheme in the world’s largest democracy, it also questions the efficacy and sincerity of the Indian government, amid the lack of law of privacy and data protection.    

Learning the Unlearned Way
Among the most debated news at primetime slots in both the countries, almost at the same time, Affordable Care Act, 2010, USA and The National Identification Authority of India Bill, 2010, India, have finally met the same fate. Of course, there are differences.  The Affordable Care Act, famously called Obamacare was enacted by the 111th US Congress and signed into law by the then US president Barack Obama. The NIAI bill, however, could never see the light of the day and finally withdrawn from Parliament.

Having said that in spite of the outright rejection by the Parliamentary Standing Committee on Finance, headed by Yashwant Sinha-Former Finance Minister of India, the Unique Identity Authority of India (UIDAI) continued its business of distributing Aadhaar Card based on voluntary basis. It was never made mandatory until Aadhaar Act, 2016 came into picture. Obamacare failed to address Republicans’ as well as experts’ concerns at large, in its lifetime and hence was finally repealed by Trump’s administration. However, on the stake are 24 million lives who subscribed to Obamacare.
Similar to NIAI bill which failed to address the then opposition, BJP’s concerns, the new Aadhaar Act has not only bypassed the opposition's concerns, but also the legal windows by making its day as money bill. The Supreme Court is yet to constitute the 7-members judges’ bench hear the year old standing plea. On the stake, are 118 crore people’s data. 

What is Aadhar? What exactly it aims to achieve?
Soon after the 15th LokSabha election results, Prime Minister Manmohan Singh, partially inspired from the then Infosys chairman Nandan Nilekani’s book ‘Imagining India: The Idea of a Renewed Nation’, asked Nilekani to envision and implement Multipurpose National Identity Card – a 12-digit Aadhaar number – for every Indian. The aim was quite clear: efficient delivery of welfare services. Since this Unique Identity card would be biometric, the huge challenge against Nilekani, the chairperson of UIDAI, was creating a failsafe electronic government data base of the entire population of India. Nilekani recalled it – the biggest social project on the planet.

Well, what do you mean by the efficient delivery of welfare services?
Among the welfare schemes are: LPG at subsidized rate, mid-day meal to kids attending public schools, rice-wheat distribution at subsidized rate to people living below poverty level (BPL) and so on.  And, as per the Planning Commission reports, every year, almost Rs50,000 crore went in vain, as it never reached to the beneficiary owing to the duplicate identity cards and dealers and agencies involved in between the government and beneficiaries. With Aadhaar card being biometric in nature, making duplicate cards under the same identity is theoretically impossible.   
If Aadhaar Card is all about the genuine benefits to the people, then why so hullabaloo?
The Aadhaar card detail is not limited to the biometric, but it has got the entire personal details that include: Name, Father’s Name, DoB, Mobile No. and Address too. The data is sensitive, as Aadhaar is going to be a single window gateway to all your details, your banks’ accounts, Tax details and so on. Responding to Quartz, Nilekani averred, “Each device is individually encrypted and registered with the UID system. So you cannot fake all this.”   However, it has been widely reported that how Aadhaar data of 130 million people were compromised; how Jharkhand Govt. has accidentally leaked more than 1 million Aadhaar records of pensioners. Also, how various Common Service Centres across the country were involved in leaking the information, right from the collection to storage, accuracy and use of Aadhaar data!   
Some people are aware of trade-offs between privacy and convenience while using Microsoft OS, Google search engines or Apple iCloud. However, providing services for more than a decade, there have been no intentional leaks of the collected data to third parties, by the above mentioned companies. This is not the case with Aadhaar. The recent leaks and Aadhaar data accessibility through simple google searches also questions the governments’ capability of handling data at large scale. This doesn’t stop here. Despite the 27 Do’s and 9 Don’ts guidelines released by the central government, section 8, of Aadhaar Act, is drastically different from that of NIAI bill, 2010. While the NIAI bill allowed the authentication limited to the biometric match only with Yes/No option. The Aadhaar Act allows the requesting agency/person to ask for other information too, pertaining to the person’s identity.

Legal Glitches
As notified earlier, the Act has been passed under Money Bill. However, according to the Article 110 of the constitution, a bill can be classified as Money Bill, only if 
 It imposes, alters, abolishes, or regulates any tax; 
 Regulates borrowing or alters the financial obligations of the government; an
 Affects the custody of the consolidated fund of Indiaor appropriates payments, withdrawals and expenditures from the fund and matters incidental to all these actions. 
Under the same Article 110 (3), the constitution has given the Speaker of the lower House, LokSabha, the final authority to decide whether a Bill is a Money Bill or not.  Responding to queries, whether Aadhaar falls under Money Bill or not, Dr. Anup Surendranath, Professor, Constitutional Law-National Law University, Delhi averred, “Introducing  and  passing  the  Aadhaar Act  as  a  Money  Bill  amounts  to  a  gross  illegality because there is no manner in which the contents of the Act can be justified under the terms of Article 110(1). Many commentators have rightly pointed out that the use of the word “only” in Article 110(1) prevents the Aadhaar Act from falling under its scope.”
While 98% of the countrymen are being reported to have the Aadhaar identification as of now, in spite of successive petitions at the Supreme Court, the successive CJI’s have failed to constitute a seven membered bench to hear the hear the constitutional irregularity (not procedural) under the Article 212.
The legal window is wide open. The petition was filed by Former Union Minister, Jairam Ramesh. The Aadhaar Act can meet any of the following three fates: 
1. Mohd Saeed Siddiqui case, (State of UP) and Yogendra Kumar Jaiswal (State of Bihar) are two landmark decisions of the Supreme Court where SC  held  that  the  decision  of  the  Speaker  of the corresponding State Legislative  Assembly,  in  determining  a  bill  to  be  a  money  bill  could  not  be  judicially reviewed  and  that  the procedure  adopted  by  the  State  Legislature  was  beyond judicial review by virtue of Article 212(1). Hence, the case would fall null and void.
2. The Supreme Court brings the Jairam Ramesh case under 212(1) purview  citing gross constitutional irregularity. This might bring the government of the day under huge pressure to address take back the Act.
3. Congress which is totally against the Bill getting passed as Money Bill, might take it back, once it comes in the government.

How does the Aadhaar Act affect professionals?
Once linked with PAN card, the Aadhaar card would be a single source for ID checks, ITR details, Police records, and even employment history too.  Every agent who is in the business of verifying e-KYC forms (Know your Customers) will end up knowing more than they should, as the procedure would allow them to access the customer’s Aadhaar Id. And, interestingly, the new Aadhaar Act allows them to do so.  Devangshu Datta, Contributing Editor-Business Standard opined, “Given excellent facial recognition programmes and off-the-shelf image converters, a digital photo can be instantly converted and compared to databases of base-64 images.” He, thus, suspected, “Then such an agency will be able to trawl public pictures downloaded from wherever, and recognise random people and tie mugshots to Aadhaar data.” This way, the enrolling agencies will have much more information linking to an Aadhaar no. than even the UIDAI data base can ever have.
Such agencies which are found often trading data base for professional uses such as sales pitching etc. might misuse the same for a large range of activities. Hence the question is: passed under Money Bill, where will it land up in the absence of basic laws pertaining to people’s privacy and data protection?
On the other hand, the government never showed even an iota of sincerity while dealing such grave concerns. The Attorney General Mukul Rohatgi said, “The arguments on so-called privacy and bodily intrusion are bogus."

What is the way forward?
If Aadhaar is the face identification no. of a person, every other information linked to the particular Aadhaar must have layered encryption where each layered data must have a higher/different secured encryption, and should be immune to agencies accessing Aadhaar info.  

This will not only separate and failsafe each and every layer from the other, but would also address the privacy concerns. On the other side, one must not amplify the privacy concerns, just for making some buzz in news space. For e.g., if we study in a foreign university, the institution collects every bit of data, right from the biometric data to Passport Id, Domicile, References, PAN and Police Records. We don’t mind sharing the information because of the trust we usually have over these institutions or even private companies like Apple, Google or Microsoft, Dropbox and so on. However, given the massive Aadhaar leaks intentionally done by the CSCs across, it’s hard to believe whatever the Gazette of India depicts under Aadhaar Act, 2016, at a time, when the Supreme Court is yet to decide the legality glitch of the Act.

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