Will the most vulnerable … have any ability to insist on their notional right to alternative means of identification…?
Aadhaar means “foundation” in Hindi. It is the name given to India’s unique identification program, a program that within the last 5 ½ years has registered over 990 million Indian residents. This month, on March 11, 2016, the Lok Sabha, India’s lower house of Parliament, passed the Aadhaar Bill, which allows the government to link the delivery of all government schemes and social welfare to Aadhaar. This includes the disbursement of all benefits and subsidies.
What sort of foundation for India’s democracy and social inclusion project will Aadhaar provide?
Introduction of the bill has unleashed a fierce debate in India. On one side are supporters who welcome India’s embrace of digital technology for social good. They laud the efficiency and transparency dividends that have already accrued and promise to flow from direct transmission of welfare benefit to beneficiary account without the usual obstacles of corruption, leakage, or delay. In 2013, UNICEF estimated that approximately 41 percent of the population was registered at birth, and the enhanced access to a robust proof of identity is also significant.
But on the other side are detractors alarmed by the lack of privacy protections and the specter of surveillance at a time when government censorship and challenges to free speech are on the rise. They point to the possibility of benefit exclusion stemming from lack of enrollment or systemic error. What should we make of this debate?
The world’s largest biometric database, Aadhaar, collects fingerprints, iris scans, and basic demographic information voluntarily provided since 2010 by residents (not just citizens) of the world’s most populous democracy. In return, enrollees receive a 12-digit identification number and access to streamlined government services, including direct delivery of social protection benefits, subsidies, and scholarships into their bank accounts. So far, as the Supreme Court affirmed in August 2015, enrollment is entirely voluntary, and services linked to Aadhaar must continue to be made available to those who lack an Aadhaar number. But how long will this last?
The fact that the new Aadhaar Bill was introduced as a money bill has raised concerns. Money bills can be passed by the Lok Sabha alone, without need for approval by the Raja Sabha (the upper house) – the former is at present controlled by the government party, the latter is not. The bill has therefore become law without full democratic scrutiny and approval. Why, if Aadhaar is to remain voluntary, has the government resorted to this strategy?
Government supporters argue that the reason for the introduction of this bill is efficiency: delivery of benefits via Aadhaar is vastly more effective than alternative systems, runs the argument, so it is in the interests of the country, particularly its most vulnerable members, to proceed expeditiously. They argue that the benefits so outweigh possible costs (in terms of privacy or misidentification risks) that the trade-off is justified in the interests of social justice. Why risk delay or nonpayment of crucial benefits to those in need, they argue, because of some unproven possibility of future error or abuse?
Others see a darker scenario. The Supreme Court’s staunch insistence on the voluntary nature of Aadhaar to date has, they claim, “ruled out most of the planned applications of Aadhaar.” This bill, in their view, is “the Central government’s counter-attack.” Not only does it “give the government sweeping powers to make Aadhaar mandatory for a wide range of facilities and services,” it also “enables the government to impose Aadhaar identification in virtually any other context….”
What should we make of these contrasting claims?
First, it is useful to carefully construe the bill itself. Article 7 provides:
“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 …… 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.” [italics added]
This crucial article allows the government to require Aadhaar identification as a condition of receipt of a benefit. It is left to the savings (“provided that”) clause to delineate an alternative where such identification is not available. At face value, this means that while government has the right to demand an Aadhaar number, the beneficiary recipient has the right to insist on an alternative means of identification. In theory, this is a reasonable quid pro quo. In practice, given power disparities, it represents a very significant move towards compulsory Aadhaar enrollment. It does not take much insight to anticipate the inexorable progression to mandatory registration. Will the most vulnerable among the population have any ability to insist on their notional right to alternative means of identification, when food or fuel subsidies are at issue? Will state officials be sympathetic or open to such claims? And if not, will legal challenges deliver remedies within reasonable time frames? Will vulnerable communities suspicious of government surveillance not draw more attention to themselves by resisting Aadhaar enrollment?
Moreover, several commentators have asked whether it is acceptable for such sweeping (indeed unprecedented) government access to individual information to be instituted without robust legal oversight. Two arguments have been advanced in this connection. Economist Jean Drèze points to the very broad scope of Article 57 of the Act as cause for alarm because it allows the government to impose Aadhaar identification in “virtually any context.” The Article states: “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose…… provided that the use of Aadhaar number under this section shall be subject to …section 8 and Chapter VI.”
In assessing the validity of Drèze’s concern, much rides on the confidence one has in the government’s willingness or ability to enforce its stated obligations. The powers afforded government are huge, for sure, but the savings clauses referred to in the (“provided that” section of the) Article are, on their face, very robust. Article 8 requires those requesting Aadhaar related information to obtain the holder’s consent before collecting it; and Chapter VI establishes a clear and mandatory prohibition on the release or sharing of any identification without the Aadhaar number holder’s permission. Will the government abide by these rules?
A second set of arguments critical of the absence of protections give cause for concern in this regard. Legal researcher Usha Ramanthan provides examples of cases where government agencies have already sought Aadhaar information for criminal investigation purposes, or defended the claim that there is no fundamental constitutional right to privacy. These cases do not inspire confidence about the future or the likelihood of firewalling Aadhaar identification against pressing state demands, particularly if security or terrorist concerns are alleged. Vulnerable and oppositional communities may be forced to choose between aiding and abetting government surveillance or sacrificing their rights to nondiscriminatory social protection – a bleak but easily imaginable prospect in the current political climate.
Aadhaar’s transformational potential as a tool for social protection depends on a more vigorous and convincing articulation of privacy and civil liberty protections than are forthcoming to date. In the absence of a proven track record of respect for individual privacy, and the nonnegotiable confidentiality of personal information, it is essential in our view that Aadhaar registration remains manifestly voluntary. Moves to strengthen its mandatory use will undermine the precious, critical but all too precarious democratic foundation on which India depends.
-Jacqueline Bhabha and Amiya Bhatia
For more information on the Harvard FXB Center’s work on the role of identification systems see: https://wordpress.sph.harvard.edu/nidc/
 Full text of the bill: http://www.prsindia.org/uploads/media/AADHAAR/Aadhaar%20bill%20as%20passed%20by%20LS.pdf
 http://timesofindia.indiatimes.com/india/Opposition-amends-Aadhaar-bill-in-Rajya-Sabha-Lok-Sabha-clears-original-draft/articleshow/51433038.cms and http://timesofindia.indiatimes.com/india/Aadhaar-bill-all-you-need-to-know/listshow/51436630.cms
 http://thewire.in/2016/03/14/aadhaar-identification-simplified-myths-busted-24713/ and http://thewire.in/2016/03/03/the-law-needs-to-catch-up-with-aadhaar-but-not-in-the-way-jaitley-is-promising-23543/