Privacy, Security and the Supreme Court: An Aadhaar Starter Kit

Arguments in SC have delved into not just Aadhaar, but also privacy in India, civil liberties and democratic rights.

“Even if you want to be forgotten, the state is not willing to forget you.”

That’s what Mukul Rohatgi, Attorney General of India, argued in the Supreme Court during the hearing of several petitions which challenge amendments made to Section 139AA of the Income Tax Act. These amendments, which were passed with the Finance Bill, 2017 make Aadhaar mandatory for PAN cards and filing IT returns.

For six days, the Supreme Court bench of Justices AK Sikri and Ashok Bhushan has been witness to an important debate in contemporary India. The arguments put forth by the Centre and Senior Advocates Shyam Divan and Arvind Datar have delved into not just issues pertaining to Aadhaar, but also privacy in India, civil liberties, democratic rights and constitutional freedoms.

The Aadhaar Starter Kit

Perspectives on Aadhaar depend on who you’re talking to.

With every stakeholder, a different clutch of arguments emerge on Aadhaar dealing with security, welfare schemes, role of governments, privacy, surveillance and development. Here are the main stakeholders you should know about:

1. UIDAI

The Unique Identification Authority of India (UIDAI) was established as a statutory authority under the Aadhaar Act, 2016. An attached office of the erstwhile Planning Commission before 2016, UIDAI is responsible for collecting the biometric and demographic data which is required to enrol as a part of the 12-digit unique identity number.

2. Civil Society

Sections of the civil society have been vocal critics of Aadhaar, raising concerns over it being a surveillance tool, potential invasion of privacy and linking of databases making personal data vulnerable. On the other hand, some argue that critics of Aadhaar should differentiate between Aadhaar the technological tool and Aadhaar the government policy backed by legislation

Also Read: Your Aadhaar Data Is Now With Private Companies As Well

3. Government

The role of the government in the Aadhaar debate can be understood through executive orders which make Aadhaar mandatory for a slew of welfare services, including pension fund benefits, mid-day meals and cash rewards.

Passing of the Finance Bill, 2017, which makes Aadhaar mandatory for PAN card and filing IT returns, is the most significant shift from voluntary Aadhaar to making it mandatory. Furthermore, the passage of the Aadhaar Act, 2016 and all its inherent issues could also be understood as a part of the government’s role in the Aadhaar ecosystem.

So, Is Aadhaar Compulsory or Voluntary?

That’s the question at the heart of the Aadhaar debate.

The National Identification Authority of India Bill, 2010 was introduced in the Parliament by UPA-II. The Lok Sabha Standing Committee on Finance had cited UK’s failure to implement a mandatory ID project and raised concerns over Aadhaar’s security. In reply, the government had said: “Aadhaar number is not mandatory.”

In 2015, the Supreme Court stated that “it is not mandatory for a citizen to obtain an Aadhaar card” and that “production of an Aadhaar will not be condition for obtaining any benefits otherwise due to a citizen.”

However, with the Finance Bill, 2017 amendment, being enrolled in Aadhaar has been made compulsory for filing IT returns and obtaining a PAN card. Unlike specific and optional welfare benefits for which Aadhaar was made mandatory, an Indian citizen is legally bound to file IT returns. Which effectively means that a lack of an Aadhaar card makes a citizen a criminal.

The recent Supreme Court (SC) case challenges the amendment to the Income Tax Act which makes Aadhaar mandatory, with the question about whether Aadhaar is mandatory or compulsory at the centre.

Also Read: Aadhaar Act, 2016 Should be Amended to Improve Cybersecurity

Is There a Legislation on Aadhaar?

The Aadhaar Act, 2016 or the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 is the legal framework within which Aadhaar is implemented.

Section 29 of the Act limits the sharing and publishing of core biometric information collected and states that “no Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations.”

But the Act has one significant problem.

The Act states that no information collected under Aadhaar will be disclosed except in “interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government.” However, the Act doesn’t specify ‘national security.’

Is the Aadhaar Database Safe?

Recently, the Centre for Internet Society (CIS) reported that nearly 13 crore Aadhar numbers were vulnerable and compromised. This has been the latest in a line of #AadhaarLeaks, with reports of government departments publishing Aadhar numbers.

However, in terms of the Aadhaar database being vulnerable, there’s very little clarity on whether UIDAI only stores authentication logs or if there’s other specific metadata which is also stored.

The UIDAI argues that there’s no central database which stores the biometric and demographic data collected under Aadhar. On the other hand, critics of Aadhar say that linking of PAN (and other databases) with Aadhaar will make individual databases vulnerable to hacking.

Also Read: In Defence Of Aadhaar – Nandan Nilekani

If I Have an Aadhaar, Can I Opt Out?

According to the UIDAI website, once a citizen is enrolled in Aadhaar, there’s no provision for his/her information to be deleted.

Or, as Mukul Rohatgi said in the Supreme Court, the citizen has no “right to be forgotten”. Interestingly, Rohatgi also argued that citizens can’t refuse to give their fingerprints and iris scans for Aadhaar enrollment and don’t have “absolute right over their bodies”.

Also Read: Aadhaar Case: Beyond Privacy, An Issue of Bodily Integrity

So, What’s Happening Now?

“The sacrosanctness of the Supreme Court judgment must be protected.”

That’s what Senior Counsel Arvind Datar, arguing for the petitioners, told the Supreme Court bench of Justices AK Sikri and Ashok Bhushan. Datar was referring to Supreme Court’s statement in 2015 when it stated that “it is not mandatory for a citizen to obtain an Aadhaar card.”

As the SC reserves its judgement, what remains to be seen is whether the Court reverses its decision or upholds its earlier judgement.