07 April 2018

On Aadhaar Proportionality

This note examines Aadhaar through the lens of proportionality and observes that it fails on all four counts.  Aadhaar's interference with rights is not justified by goals because it is just a medium and cannot be the basis to address a motley of goals. The logical connect is weak because it does not address exclusion errors for individuals, is silent on inclusion errors for non-individuals, and the links to fraudulent financial dealings and terrorism is far-fetched. Even if one is restricted to addressing inclusion errors of individuals, a number without biometric information would be the least intrusive and with relatively less exclusion errors. More importantly, the architecture of Aadhaar does away with executive accountability and puts the burden on those whose rights are compromised. 
Introduction
The Aadhaar hearing in the Supreme Court of India has completed 25 days. The petitioners opposing Aadhaar put forth their arguments for the first 19 days and the respondents (particularly, the Attorney General including a presentation by Chief Executive Officer of Unique Identity Authority of India) have now put forth their arguments for six days and this will continue for some more days. At this stage, it seems that the judgement could largely depend on Aadhaar's test of proportionality. 

Four aspects of Proportionality
In constitutional jurisprudence, a test of proportionality looks into four aspects. In the context of Aadhaar, they raise the following four questions.
  • Is Aadhaar's interference of certain rights (that inter alia includes right to not be excluded from welfare entitlements, right to life with dignity, and right to privacy) justified by its legitimate goals (this not only includes targeted delivery of subsidies, benefits and services, but also to curb money laundering, prevent bank frauds, do away with income tax evasion, eliminate poverty, reduce income disparity, and bring down terrorism, among others)?
  • Is there a logical connect between Aadhaar and the legitimate goals?
  • Are there other methods of addressing the legitimate goals that would be less intrusive of the rights?
  • And, more importantly, does Aadhaar impose an excessive burden on those whose rights are being compromised?
Is Interference of rights justified by goals?
In criminal jurisprudence, a settled matter is that no innocent should be punished and in ensuring that it is fine if some perpetrators go unpunished. In the same vein, in matters of welfare entitlement,  no deserving person should be excluded and in ensuring that it is fine if some undeserving persons get included. It follows that right to life with dignity is also compromised for those who are excluded. As an afterthought one may also add that providing benefits to the non-deserving (say, entitlements for the poor to someone who is just a wee-bit above the poverty line) would have greater acceptance than the possibility of allowing the perpetrator of a rarest-of-rare  crime go unpunished  because of some benefit of doubt on account of poor evidence-gathering by the prosecution.

The right to privacy was always enshrined in the Consitution of India; but, unfortunately, was oblivious to the executive until a nine-judge bench clarified this to be the case subject to reasonable restrictions in the interest of the state.  The reasonable restrictions fail the exclusion errors when it comes to targeted delivery of subsidies, benefits and services. In fact, it is a double whammy because one does not receive the entitlement due even after compromising with privacy concerns. Further, Aadhaar is also touted to curb money laundering, prevent bank frauds, do away with income tax evasion, eliminate poverty, reduce income disparity, and bring down terrorism, among others.  This brings in a motley of goals, as if Aadhaar is a panacea for all ills, which it is not.  

Is there a logical connect with goals?
Aadhaar by design is a technology to 'uniquely' identify and authenticate. Hence, by design it is structured to reduce inclusion errors in the case of persons. This is neither designed nor does it automatically lead to reduction of exclusion errors. Rather, failures to identify and authenticate can add to the exclusion errors. This can be particularly so for individual recipients of entitlements who are manual workers, old and sick among others and thereby questioning their right to life with dignity.

It needs to be mentioned that a substantial amount of benefits, subsidies and services may not be provided to individuals (for instance, incidence of burgeoning fertiliser subsidies, loan write-off to reduce non-performing assets of banks that emanate from non-individual entities, and tax waiver to corporate entities, see more on this at ground reality). They are provided to firms or corporate entities. And, all these would not come under the purview of identification and authentication through Aadhaar. Thus, in these instances, making Aadhaar incapable of addressing inclusion errors also.

Aadhaar's difficulty in addressing exclusion for the recipient of welfare entitlements and inclusion of non-deserving non-individual entities also raises questions on its ability to curb money laundering, prevent bank frauds, do away with income tax evasion, eliminate poverty, reduce income disparity, and bring down terrorism, among others. All these make its logical connect with goals weak.

Are there other less intrusive methods to attain the goals?
For the motley of goals Aadhaar is a means, a via media. In particular, it is designed to facilitate identification and authentication of not only intended recipient of entitlement but also of wrong doers involved in money laundering, bank fraud, and terrorism among others. Aadhaar's ability to identify and authenticate lies through its special feature that it is a 12 digit random number ensuring uniqueness through biometric information (fingerprints and iris of eye) and by not reissuing a number.

Aadhaar is considered to be better than a smartcard, as the smartcard may have a technical life and there could be a fear of misuse due to loss of a smartcard. Limits to a technical life could add to the cost, but the Aadhaar card, a copy of which is required by many service providers, will also have a limited technical life. Besides, an Aadhaar card will also require updating of address or biometric information and in all these instances the cost is on the individual. Besides, a possible misuse of smartcard because of loss could also be addressed technical (for instance, through usage of pin or one time password).

Aadhaar is considered better than a unique number without biometric information because it can do away with a particular individual having multiple such numbers. A case in point is the Permanent Account Number (or PAN) card. While there should be efforts to weed out duplicate PAN cards by any single entity to reduce possible inclusion errors, but its advantage lies in the fact that non-individual entities also have a PAN card and it would be easier to trace transactions, as legally appropriate, through the PAN cards and, if required, one could supplement and complement it with the recently introduced Goods and Services Tax Identification Number (GSTIN). In any case, PAN serves a different purpose, as it is not meant to regulate delivery of benefits, subsidies and services. Either one could use the PAN number or a similar number because it is the least intrusive. This is so because it does not require a digital identification and authentication each and every time one is entitled to receive benefits, subsidies and services. Besides, this system of identification will have less exclusion errors.

Is there excessive burden on those whose rights are compromised?
A common problem of the three systems of identification numbers (Aadhaar, Smartcard, or PAN like number) if they are used to address delivery of benefits, subsidies and services is that they are designed to reduce inclusion errors and are centralised systems and top-down. Further, Aadhaar has been designed to address the executive's inability to address inclusion errors through a technological system (machine readability of identification and authentication), This may not reduce the inclusion errors, but will shift the burden of errors (particularly inclusion, but also exclusion) to the technology. This would mean that no individual would be held accountable for any errors or for omission and commission as the checks have been carried out through Aadhaar identification and authentication. This will be a serious burden on the recipients of entitlement.

It needs to be reiterated that the problem of exclusion errors is local because of absence of last mile connectivity and leakages. The solutions for these should not only be decentralised, but also bottom-up. This requires giving the responsibility to local authorities and also by holding them accountable for deliberate wrong doings. There should be appropriate and effective checks and balances, which among others, should also include social audits.

To wit, in the mid-day-meal scheme it should be the school teacher or any other authority in the school who is the best suited to identify. The possibility of teacher or any other authority misusing the power should be dealt independently and it definitely is not effective to allow each and every student authenticate their presence every day electronically if they have to partake in the mid-day-meal scheme. This will add to the time and cost requirement. Moreover, the Aadhaar-based identification and authentication is not likely to reduce leakages or misuse. For instance, if after identification and authentication through Aadhaar the authorities provide less, or discriminate in provisioning, or refuse mid-day meal to the children.

As already conveyed, Aadhaar's ability to curb money laundering, prevent bank frauds, do away with income tax evasion, eliminate poverty, reduce income disparity, and bring down terrorism, among others is weak. In fact, one does not see much additional advantage over what PAN and GSTIN can achieve to address some of these goals.  Imposing Aadhaar identification and authentication on all such activities would rather add to the burden and can even compromise national security.

While Aadhaar has come through a Money Bill (an Act passed through the lower house), it has been designed to do away with executive accountability. This would mean that the burden of not to be excluded or the burden to live a life with dignity or the burden to not compromise with ones privacy would lie with the recipient. The legal costs can further add to the burden. 

Summary
Examining proportionality to Aadhaar, one is of the opinion that Aadhaar fails on all four aspects. First, Aadhaar's interference with rights (right to not be excluded from welfare entitlements, right to  life with dignity, and right to privacy) does not justify the goals because it is just a medium and cannot be the basis to address a motley of goals. It cannot be the be a panacea for all ills. Second, the logical connect to goals is weak. For instance, it does not address exclusion errors for individuals and is silent with regard to inclusion errors on account of non-individual entities. The links to fraudulent financial dealings and terrorism is also far-fetched. Third, even if one restricts to addressing inclusion errors, a number without biometric information would be the least intrusive and will have relatively less exclusion errors.  Fourth, the architecture of Aadhaar removes the accountability of any lapses from the executive and puts the burden on those whose rights are compromised.


Earlier blog posts on Aadhaar by the author

Right to Physical Existence Matters





[The views expressed are that of the author and not that of the institutions/organisations that the author is associated with. Some of the arguments that are not elaborated here may be found in the earlier related blog posts. The author comes from a non-legal background and the final outcome of the Aadhaar hearing would depend upon the arguments put forth by the petitioners and the respondents and their considered interpretation by the honourable judges. Comments are welcome.]

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