Why Supreme Court judgment on Aadhaar calls for an appeal

Aadhaar is critical plumbing for a welfare state. The verdict must be challenged on the grounds of individual choice and the freedom of the executive to frame policy.

Written by Nandan Nilekani | Updated: September 15, 2015 3:18 am
aadhaar, Aadhaar card, aadhaar card benefits, Supreme Court aadhaar card, aadhaar card PDS, Aadhaar card LPG, Aadhaar card application, India news The UIDAI system is completely ignorant of the usage of Aadhaar for seeding and for the Aadhaar Payments Bridge.

Mahatma Gandhi refused to join the Constituent Assembly that wrote our wonderful Constitution, but his advice to some of the members was, “Whenever you are in doubt, apply the following test. Recall the face of the poorest and the weakest man you may have seen, and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? Will it lead to swaraj for the hungry and spiritually starving millions?” I submit that the recent Supreme Court (SC) interim judgment on Aadhaar does not pass the Mahatma’s test and it must be appealed. All it needs is one small tweak.

To meet the unleashed aspirations of a billion people, “business as usual” will not do. The Indian state must use technology in a transformational way to accelerate social and economic justice and expand opportunity for all at scale and speed. Two of the four SC directives are unfair. The first two — wide publicity of Aadhaar being non-mandatory and ensuring that no benefits due to any citizen are denied without an Aadhaar card — are useful. But the last two — no use of Aadhaar cards or its information for anything other than PDS ration shops and LPG cylinders — must be appealed on the grounds of individual choice and the freedom of the executive to frame policy.

But let’s start with the facts that dispute some of the filings in this case. For example, in the banking sector, Aadhaar is completely voluntary and has not been made mandatory by the RBI. No banking information is shared with the Unique Identification Authority of India (UIDAI); all customer banking transactions are held by regulated banking entities governed by bank secrecy laws. The UIDAI system is completely ignorant of the usage of Aadhaar for seeding and for the Aadhaar Payments Bridge (maintained by the National Payments Corporation of India, an RBI-regulated entity). When a customer does an Aadhaar authentication at, say, a microATM, the Aadhaar system knows that an authentication was done, but not the purpose for which it was done. Similarly, when an electronic know your customer (eKYC) is done, the Aadhaar system releases the name and address to a regulated entity, but does not know the purpose. Also, whenever a person’s Aadhaar number is used for an authentication or an eKYC, he gets an alert by SMS/ email that his number has been used. The Aadhaar system ensures privacy by design — it uses a federated architecture, that is, banking data is wholly inside the banking system, healthcare data wholly in the healthcare system, etc. Moreover, a person can elect to “lock” her own Aadhaar number, so no authentication or eKYC is ever done without her “unlocking” it. Biometric data is never shared by the UIDAI under any circumstances.

The first ground for appeal is the freedom of individual choice. Enrolment in Aadhaar is voluntary and individuals granting permission for the UIDAI system to share their name and address in a secure way with another system for their own convenience and benefit hardly qualifies as a violation of their right to privacy. The upsides of the voluntary use of Aadhaar for financial inclusion, for example, are immense. Aadhaar is used by individuals in the banking system to: First, open an account with eKYC; second, seed an already opened bank account; third, receive government benefits through the Aadhaar Payments Bridge; and fourth, withdraw money from a microATM using Aadhaar biometric authentication. All four uses of Aadhaar are voluntary, but simpler, faster, cheaper and far more convenient than the alternatives. The data is only shared with the customer’s consent. Most importantly, the same data is already widely available on the internet via election rolls.

The second ground for appeal is based on executive freedom to frame policy. On what basis did the court choose the use of Aadhaar for gas cylinders over other subsidies? Why allow ration shops to use Aadhaar for authentication and eKYC to “open” a ration account, but stay silent on Aadhaar’s eKYC to getting a bank account or a SIM card? Why be silent on the use of Aadhaar authentication and eKYC for other social and economic interventions like biometric attendance, the Jan Dhan Yojana, the Mahatma Gandhi National Rural Employment Guarantee Scheme, eSign (digital signatures) and new payments banks? Post this judgment, the Election Commission, the Pension Fund Regulatory and Development Authority and the Employees’ Provident Fund Organisation have put their Aadhaar usage plans on hold. Government expenditure in India will rise substantially from the current 17 per cent of GDP over the next few decades; a large part of this expenditure growth will be subsidies for our poor. Fraud is the biggest enemy of the Rs 4 lakh crore India already spends on subsidies. Why deny the Indian state the use of Aadhaar for efficient and effective subsidy-targeting and providing conveniences to its people, as long as the use of Aadhaar is voluntary?

India was a reckless experiment in 1947 — poor, large, linguistically rich and religiously diverse countries were not supposed to survive as democracies. But the radical innovation of a Constitution that gave universal franchise — some women in Switzerland, for instance, only got to vote in 1972 — has created a wonderful democracy. However, it is important to acknowledge that over the last 69 years, our political democracy (one man, one vote) has not always been complemented by social democracy (one man, one value) and economic democracy (one man, one opportunity). Aadhaar is critical plumbing for the Indian state to leapfrog developed countries in creating a modern welfare state, end poverty, create opportunities and meet our tryst with destiny.

My humble submission is that the Supreme Court’s interim judgment needs only one small tweak. An Aadhaar holder must be able to use her number and share her own name and address in any application of her choice, as long as it is voluntary.

The writer is former chairman of the Unique Identification Authority of India, and co-author of the forthcoming book ‘Rebooting India: Realising a Billion Aspirations’.

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First Published on: September 15, 2015 12:00 am
  1. S
    Sadanand
    Sep 15, 2015 at 12:34 pm
    Even if Granted for arguments sake that UIDAI/ ADHAAR would inevitably lead to Targeted and Fast delivery of Govt Services; Nilkeni's formulation flounders on the rock of "VOLUNTARY". Central and State governments have been guilty of coercion in Adhaar enrolment and of threatening denial of benefits without the same in complete disregard of successive SC directives over last few years. In fact, government has repeatedly lied about ADHAAR being not compulsory in court, while its schemes on the ground demand ADHAAR card for various enrolments. If "VOLUNTARY" aspect is removed from UIDAI/ ADHAAR and delivery of services and/or benefits delinked from it, then there is no rational left in continuing with UIDAI/ ADHAAR. UIDAI is not even supposed to be proof of citizenship, then why have it at all?
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    1. H
      Haradhan Mandal
      Sep 15, 2015 at 9:20 am
      Aadhar on a cost-benefit analysis is a big waste of a HUGE amount money that the country can ill-afford.
      Reply
      1. H
        Haradhan Mandal
        Sep 15, 2015 at 9:22 am
        It could have been implemented (additionally) in GOLD Retail and Real estate transactions for tracking Black Money and for 'sniffing on' corrupt govt officials (and tax avoiders)
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        1. H
          Haradhan Mandal
          Sep 15, 2015 at 9:23 am
          it could have been implemented only for those systems like Corporate affairs (stock market scam) , PSU bank loans (huge loan defaulters by big and influential loanee)
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          1. P
            PRDPrasad
            Sep 16, 2015 at 6:12 pm
            AADHAR is a brilliant solution that enhances EFFICIENCY of government programme implementation in the short-run with a potential for ensuring EQUITY in accessing benefits in the long-run. Equally critical issue is in balancing the same with SECURITY, LIBERTY and PRIVACY of individuals and that of the State. These three issues could have been handled more efficiently by government by bringing in a legislation/ordinance before launching. In fact, from the perspective of public policy on AADHAAR offers a good case study to demonstrate how a brilliant idea is allowed to suffer due to illogical sequencing of policy operations, insutional rigidities, and possibly due to short-sighted political leadership. The suggestion for voluntary use of AADHAAR, implicitly acknowledges the difficulties in creating the required legal frame-work to SECURE the data.
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            1. T
              TIHAEwale
              Sep 15, 2015 at 11:00 am
              Aadhaar may be good but till date i have not not been able to link my mobile number linked to my Aadhaar ( where as while applying for NPR i had submitted mobile number and rather received Aadhaar based on NPR only) where as Income Tax return was accepted online as mobile was registered with Bank where account was KYC complied
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              1. T
                TIHAEwale
                Sep 15, 2015 at 11:02 am
                Why Parliament is not making Aadhaar regularised so that SC does not issue order permitting usage for certain facilities only
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                1. A
                  Anon
                  Sep 15, 2015 at 3:20 pm
                  4th para 4th line Right to Privacy..... & they reveal this nivida moreshwar kulkarni Ideny should've smudge or blurred her ID No. Enroll No. Pin code Etc.
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                  1. R
                    RAJU
                    Sep 15, 2015 at 5:45 pm
                    SC is right. Govt. should not and cannot force people to share personal details for every service they use. It should be only voluntary.You cannot enforce the public, they are only your views. Make Aadhar card application online like pan card, so that people need not go to stand in queues for it and can be applied from their home.
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                    1. A
                      Arun
                      Sep 15, 2015 at 10:11 pm
                      Believe it or not , AAdhar is not properly implemented in India. Very poor quality equipment have been used while capturing individuals information. After capturing information from an individual , the same information is not accessible because that does not match match with the actual information and the information in the database, because that individual's information was not captured properly. I have verified it and written and mailed about this problem to Mr Nandan Nilekani's office and when he was Chairman of UIDAI. But no reply received till date. Since data has not been captured properly, many people have multiple Aadhar numbers. And many people particularly senior citizens are not able to modify their details. Idea is good but its implementation is extremely poor,with lot many problems.
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                      1. A
                        Arun
                        Sep 16, 2015 at 8:27 pm
                        Implementation is faulty, data collected from individuals is faulty. Super Senior citizens , whose biometric information is captured , if checked the very next day after capturing is not recognised by UIDAI systems. I have written about it to UIDAI long back, got no reply, nobody bothers for unknown reasons.
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                        1. V
                          Vedic Rashtra
                          Sep 15, 2015 at 3:09 pm
                          1 lk crore of Indian tax payers money on a plastic/paper GOK whatever card when ppl r dying of hunger....seriously is this needed for India......as CEO of Infosys he kept saying that reuse and automation must be used everywhere to his employees, he also denied promotion of employees if their reuse/automation goals were not met....why did he not apply the same here....why not use the pport system and reuse it for unique identification.....Aadhar does not have police verification but the pport system has it....if not pport he cud have reused the PAN card system...why spend 1lk crore in trying to reinvent the wheel?.....
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                          1. V
                            Vedic Rashtra
                            Sep 15, 2015 at 8:14 am
                            Aadhar is total humbug....a con pla on the country.,....mr nilekani please deposit 1 lk crore into india treasure that you spent on this useless thing called aadhar.
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                            1. V
                              Vedic Rashtra
                              Sep 15, 2015 at 11:38 am
                              I don't have to....I lk crore of Indian tax payers money on a card where ppl r dying of hunger....seriously is this needed for India......as CEO of Infosys he kept saying that reuse and automation must be used everywhere....why did he not apply the same here....why not use the pport system and reuse it for unique identification.....Aadhar does not have police verification but the pport system has it....if not pport he cud have reused the PAN card system...why spend 1lk crore in trying to reinvent the wheel?.....
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                              1. B
                                B
                                Sep 15, 2015 at 3:41 pm
                                I support Aadhhar. If properly handled it can solve problems of multiple marriages, better security, black money etc. SC was wrong in interfering admin issues.
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                                1. D
                                  deva
                                  Sep 15, 2015 at 6:18 pm
                                  How would a voluntary scheme reduce fraud. If aadhar enrolment is not mandatory someone without aadhar can still get the subsidies and they can get multiples too. Voluntary is a facade here.
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                                  1. T
                                    T.S.Krishnamoorthy, Coimbatore
                                    Sep 15, 2015 at 10:03 am
                                    An excellent article and so useful and informative! All the law-abiding citizens should welcome this tremendous instrument that obviates so many pin pricks, impediments and red tape. I cannot understand the para noa of some people over this device. Only one observation. Against Supreme Court judgment there is no appeal, only review which is an absolute must.
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                                    1. V
                                      Vinu
                                      Sep 15, 2015 at 8:56 am
                                      Policy also needs to be framed after consultations, I cant remember any meaningful discussions on Aadhaar..
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                                      1. G
                                        Gopal
                                        Sep 15, 2015 at 7:34 am
                                        Justice and law have been replaced by arbitrariness a long time ago. The courts now work in cahoots with outside groups through PILs. With right connections you can even get the judges with the political inclinations that work for your case. Through stays and delays, through pompous speech, and through political judgments, the courts have very little credibility. It is the last insution that remains thoroughly elitist and colonial in its outlook. Good luck to you if you think that you can get justice or even rationality from the courts!
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                                        1. G
                                          GSY
                                          Sep 15, 2015 at 6:28 pm
                                          Plugging the leakages in the delivery of subsidies to the poor is the pressing need. Technology can only help the state to achieve this objective. If we can plug leakages and direct the subsidies to the real beneficiaries , the process of ending abject poverty will be accelerated. SC in their misguided wisdom are becoming stumbling block. Hon'ble judges need to be properly informed by the govt .
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                                          1. V
                                            Vitthal Harale
                                            Sep 15, 2015 at 6:24 pm
                                            nice
                                            Reply
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