By: Rahul Matthan
The Supreme Court order on Aadhaar averted a looming disaster.
When the Supreme Court issued a short order last week on the scope and applicability of the Aadhaar number, a great cry went up about how the apex court has set at nought the ambitious identity project of the UPA government. But most people missed the wood for the trees.
In actual fact, the Supreme Court order simply operates to stay a decision of the Bombay High Court that would have allowed the Unique Identification Authority of India fingerprint database to be handed over to Goan law enforcement agencies to help solve a gangrape case — a turn of events that the UIDAI itself had, to its credit, vociferously opposed. Had the high court order been allowed to stand, it would have created a precedent that other states around the country would have followed with alacrity. This would have been a huge setback for the right to personal privacy in India.
With control over the biometric information of over half the population of the country, the UIDAI is in possession of the most extensive database of personal records ever created. It is searchable and de-duplicated, making it a far more accurate personal identifier than anything that the police has at its disposal. It is no wonder then that investigative agencies are keen to access the Aadhaar database.
But this is not the purpose for which the data was collected. Aadhaar was conceptualised as a solution to the problem of providing accurate, non-repudiable identity to Indian residents. Six hundred million people have contributed their biometric information willingly because the Aadhaar number was going to give them something that eludes most of them even today — hassle-free and irreproachable identity information that is accepted by providers of government and private services alike. They all enrolled believing that the personal information they were providing for the purpose of securing their Aadhaar number would be kept secure by the UIDAI and used in a manner that upholds their basic fundamental rights.
And herein lies the one fatal flaw of the Aadhaar project. Despite its laudable objectives, the project is operating within the political and legal reality of today’s India. In the absence of a real working privacy law and the accompanying administrative machinery to enforce it, various government agencies have free rein over the vast store of personal information that has been and continues to be collected under the UIDAI mandate. This is, from a personal privacy perspective, a disaster waiting to happen.
In this context, the Supreme Court order preventing the transfer of Aadhaar data without consent is timely. Yet again, as it has done so often in the past, the court has stepped in to close the gap that an indolent legislature failed to fill. Thanks to this intervention, the brakes have been applied on other state agencies looking to gain access to the UIDAI database.
The second part of the judgment must also be read from a similar perspective. By preventing the state from denying services to anyone who does not have an Aadhaar number, the court is underlining the basic objective of the project — the goal of making available an identity scheme so effective that it becomes (without any government pressure) the most efficient means of proving identity in order to avail of a service.
As a matter of fact, this has been the approach that the UIDAI voluntarily chose to take. It never intended to force residents to use its services but rather pitched the Aadhaar number as the preferred alternative to the identity problem.
As a matter of law, the state cannot deny its citizens the services to which they are legitimately entitled solely on the grounds that they do not have a particular state-sponsored identity card. However, there is nothing in the Supreme Court order — nor in the law as it currently stands — that prevents the state from offering an easier alternative to avail of government services.
Aadhaar is just that, and rather than make it ubiquitous by fiat, the government should demonstrate the superiority of Aadhaar over other more traditional forms of identification. The moment residents realise that it is easier to avail of services with an Aadhaar number than through other means, they will voluntarily opt for it. And with that, the objectives of the project will be met in a manner that is consistent with the order of the Supreme Court, and with the mandate of the UIDAI itself.
The writer is founder partner at Trilegal