Nir-Aadhaar

In discussing Aadhaar, this note raises concerns on the possibility of abdication of responsibility by the Government, on possible collusion between the executive and the legislature, on silence with regard to exclusion errors, and on violation of a basic concept of jurisprudence. Hence, not ruling out denial of entitlement, or, Nir-Aadhaar.  

I have already written about Aadhaar earlier. These are with regard to Aadhaar, Radiagate and Cablegate,  If a Lie is told Three Times, Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog), and Aadhaar Interim Order Calls for Some Clarification. All these were written before the Aadhaar Act 2016 and before a nine-judge Constitution bench of the Supreme Court of India gave an unanimous judgement that Right to Privacy is a Fundamental Right.

The concerns on privacy raised in my earlier blogs have been vindicated by the Supreme Court Judgement. However, the judgement was not linked to legality of Aadhaar, privacy or otherwise, as that is to be dealt by an independent bench. These are matters of procedural propriety. As an aside, one wonders, whether Artificial Intelligence (AI), in a Digital+ world could reduce the associated time lapses. Nevertheless, before we concede ourselves to an AI world (Aadhaar-linked or otherwise), I would like to raise some additional concerns from a human or, should I say, humane perspective. 

The Abdication of Responsibility by the Government 

It is worrying to note that, as in the right to privacy adjudication, it is a motley of individuals who took up the case for their rights. As against them, the Government was arguing that the Constitution of India does not confer any right to privacy. The Government took a position by interpreting an earlier judgement where 'right to privacy' was denied when an individual or entity used it to hide some illegality. It is true that such conflicts can always arise when there are multiple concerns that the Government has to address. But, the question that props up is should it not be the Government's responsibility to have suo moto taken an initiative to address the relevance of right to privacy over policing/regulatory concerns. In such sensitive matters, if the Government takes a one-sided position then should it not be construed as an abdication of their responsibility.

This abdication of responsibility should also be true in the case of Aadhaar because while the Government considers it to be a tool to facilitate provisioning of entitlements, it is designed to address policing/regulatory concerns and in so doing it gives a greater emphasis to aspects that facilitates exclusion over inclusion. I will come to a discussion on exclusion versus inclusion concerns later. But, before that, it is important to raise concerns on a possible collusion between the executive and the legislature.

Collusion Between Executive and Legislature  

There are no two opinions about the need for different organs of the State to complement and supplement each other. But, this coming together should be for the people. Unfortunately, the coming together can also be used to subvert the in-built checks and balances. This is particularly so between the executive and the legislature, as the executive head of the Government also has a command over the legislature. Besides, it can even bypass the Judiciary by amending existing statutes or by making new ones. 

In the case of Aadhaar, the legal sanctity has been provided through a money bill. Its initial articulation for provisioning of entitlements has become secondary as such provisioning also entail monetary transactions. The Central as also the State Governments are all in sync and want to link all entitlements to Aadhaar. 

Advantages argued in favour of Aadhaar-linked transactions is that it would enable direct cash transfer to the intended individual, it would reduce transaction costs with respect to procedures, and it would reduce leakages. This gives the impression that the linking will foster inclusion, but is silent on possibilities of exclusion. This is surprising because, in provisioning of entitlements, greater importance should be given to exclusion errors.  Hence, it does raise eyebrows on whether the silence on exclusion errors is deliberate. Even if the silence is an oversight that is not deliberate and even if the intentions are well-meaning, it does show that through an articulation that is seemingly inclusive there emerges an implicit collusion between the executive and the legislature that is numb to exclusion.

Exclusion versus Inclusion Errors  

An exclusion error happens when a deserving person is excluded whereas an inclusion error happens when a non-deserving person is included. Between the two, the former is considered serious, that is, no deserving person should be excluded even if in the process of ensuring this some non-deserving persons get included. Now, if a programme or scheme is universal (for instance, mid-day meals in schools for each and every child) then every child is included and there is no exclusion error. As against this, if a programme or scheme is not implemented (say, no mid-day meals in a school because there was no ration) then there is no inclusion error (no possibility of a non-student partaking mid-day meals). 

In reality, both errors are possible. Sometimes inevitable. For instance, some students could not get mid-day meal because they came to school late just at the mealtime and food was not cooked for them and there could be instances where some authorities partake mid-day meals cooked at schools to ensure that quality is maintained. But there can be situations where these errors are intentional - denial of mid-day meals to some children so that authorities can partake.

It is even possible to show additional ghost entries in school attendance and siphon-off funds apportioned towards mid-day meals. Technically, this is an inclusion error. But, in plainspeak, this is a matter of corruption. It is touted that an Aadhaar-linked attendance system can address such concerns. Well, and good! But, then, what about the possibilities of exclusion errors. What if a student does not have Aadhaar? What if a student's Aadhaar does not match? What if there is no electricity or no internet connectivity? And, so on and so forth.

Invoking A Basic Concept of Jurisprudence

A basic concept of jurisprudence is to err on the side of innocence, that is, many culprits may go unpunished, but no innocent should be punished. This is akin to being lenient for inclusion errors but there should be no single case of exclusion error. In other words, no deserving person should be excluded from the intended programme or scheme.

Privacy or not, there are umpteen evidences where Aadhaar-linked transactions can lead to exclusion. It may be argued that a system trying to correct irregularities may have some costs. Unfortunately, these costs are to be borne by those for whom the entitlements are intended.

For instance, in the mid-day meals scheme nearly 10 crore (or 100 million) children are entitled to receive noon meal every day. Now, if for whatever reason there is one child for every 100 who is denied food then it implies that one lakh children would be denied food per day. Such exclusions could be higher for children in schools without access to electricity or internet where, incidentally, the incidence of under-nutrition are relatively higher. Even if such exclusion is limited to only one child per day then also it is akin to punishing an innocent. In other words, Aadhaar cannot rule out exclusion, and hence, does fail the test of a basic concept of jurisprudence. It is about denial of entitlement, Nir-Aadhaar.

Conclusion
A reading of the path taken by the Government with regard to Aadhaar (or, even privacy) conveys that there has been an abdication of responsibility. It is worrying that this path surmounts to a collusion by the executive and the legislature. This is so because in its efforts to do away with inclusion errors it is silent on exclusion errors. Even if unintentional, this violates a basic concept of jurisprudence, as it could deny entitlements. Or, in the guise of Aadhaar, it is Nir-Aadhaar.

[The views expressed are that of the author and not that of the institutions/organisations that the author is associated with. Comments are welcome.]