Exclusion errors, Inclusion errors and Aadhaar

This post discusses exclusion and inclusion errors in the context of Aadhaar. From a welfare perspective, reduction of exclusion errors need greater attention. The two errors are either inversely related or are positively related. The Aadhaar architecture is designed to address inclusion errors, and hence, it could either add to exclusion errors or require independent efforts to reduce them. Further, identification being independent, Aadhaar cannot address these errors at that stage. Besides, no one can be held accountable for exclusion errors.   

Introduction: Day 36

On day 36 of Aadhaar hearing in the Supreme Court of India, an implicit reference was made to exclusion and inclusion errors in the delivery of entitlement. I have already discussed about exclusion and inclusion errors in the context of Aadhaar in my earlier posts on proportionality, right to physical existence, and nir-aadhaar among others. Nevertheless, the deliberations on day 36 of the hearing urge me to further elaborate on these.

The two errors

• Exclusion error occurs when a person deserving an entitlement is excluded (we identify entitlement with receiving of benefits, subsidy, and services in Aadhaar Act). 
• Inclusion error occurs when a person not-deserving an entitlement is included. 

In comparing the two errors, there are two broad perspectives.

First, from a welfare perspective, exclusion errors are considered the greater evil and to ensure that this is reduced the system can be lenient to inclusion errors. Under this, the two errors are inversely related. In this, efforts to reduce the exclusion errors, will lead to an increase in inclusion errors. Similarly, efforts to reduce the inclusion errors will lead to an increase in exclusion errors.

Second, under certain situations when targets are fixed, the two errors can be positively related. The lower the exclusion errors, the lower will be the inclusion errors. As a corollary, the greater the inclusion errors, the greater will be the exclusion errors. If targets remain unaltered, then a reduction in inclusion errors will also imply a reduction in exclusion errors. Otherwise, reduction in inclusion errors cannot automatically transfer to a reduction in exclusion errors. There ought to be independent efforts to address reductions in exclusion errors. 

In fact, as targets ought to be independently assigned from macro aggregates (say, poverty ratio) then any reduction in inclusion errors leading to savings in budget implies that there are greater exclusion errors.  Or, we are no more in the realm of positive relationship between the two errors. We have moved to the realm of inverse relationship. A reduction in inclusion errors imply an increase in exclusion errors. The authentication failures or absence of Aadhaar that add to the exclusion errors will all fall under this. The savings to the state from these would be like a regressive tax.

Additional concerns

The Aadhaar architecture based on biometric authentication to receive entitlement is designed to reduce inclusion errors (reduce ghosts and duplication among others). However, it is possible that it could also add to inclusion errors. There is nothing in the architecture to prevent inclusion errors that happen after authentication. There can be either denial or reduction of entitlement (like less or no ration) after authentication. However, as the amount will be accounted for it automatically changes hands leading to inclusion errors. This is a continuation of denials when authentication was not done biometrically. Such exclusion-cum-inclusion errors, in the past, have been effectively addressed through social audits and that should continue to be be an effective method, as Aadhaar cannot address it.

A recipient of entitlement ought to be identified independently. It is only after identification that the recipient's information can be integrated with Aadhaar for biometric authentication to facilitate delivery of entitlement. This means that that inclusion and exclusion errors at the stage of identification will remain outside the purview of Aadhaar.

Entitlement denial, with or without authentication, exempts accountability from state. Under Aadhaar Act, any future claims on denial of entitlement may not stand the scrutiny of courts in the sense that the implementing entity cannot be penalised. This is so because authentication will be proof for having received the entitlement and authentication failure cannot be held against them. No one can be held accountable for denial of entitlements.

Conclusion

To sum up, between exclusion and inclusion errors the former is a greater evil. The relationship between exclusion and inclusion errors can either be inversely related or positively related. Aadhaar is designed to address inclusion errors, and hence, it could either increase exclusion errors or need additional independent efforts to reduce exclusion errors. It may weed out some ghosts, but not all inclusion errors. The architecture and design of Aadhar not only does not address exclusion errors, but it could also add to exclusion errors. Further, as identification ought to be independent of Aadhaar, the errors at  the identification stage cannot be addressed by Aadhaar. Besides, under an Aadhaar architecture, the implementing entities cannot be penalised for exclusion errors. 

Earlier blog posts on Aadhaar by the author

On Aadhaar Proportionality

Right to Physical Existence Matters

Idhar, Udhar, Aadhaar

Aadhaar: Privacy, National Security and Democracy

Nir-Aadhaar

Neither for you, nor for me

Creative Identification

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

[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 or in tweets by the author. 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.]

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

Idhar, Udhar, Aadhaar

Aadhaar: Privacy, National Security and Democracy

 Nir-Aadhaar

Neither for you, nor for me

Creative Identification

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

[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.]

Right to Physical Existence Matters

On day 20 of the Aadhaar hearing by a five-judge bench in the Supreme Court of India, the Attorney General made a submission. There is a case that calls for analytical separation  between exclusion and inclusion errors. Once this is done, the contrast between the Right to Physical Existence and Right to Privacy disappears.

The submission cites the Rangarajan Poverty report  (paragraph 1, footnote 3) to state that 30 per cent of the Indian population is still poor. Does this mean that the Union of India has accepted the Rangarajan report? As an aside, I may mention that this method of calculating poverty has concerns, which I have raised earlier in my reading between the poverty lines. 

The submission referred to Type I (exclusion) and Type II (inclusion) errors (paragraph 15 b ii). In jurisprudence terms the errors are similar to punishing an innocent (Type I) and letting the perpetrator go unpunished (Type II). I had also shared earlier on exclusion and inclusion errors in Aadhaar. Of course, any system (governance or otherwise) would like to minimise both the errors. However, as the two seem to be intertwined in such a manner that, more often than not, reducing one may increase the other. Hence, the preferred mode is to try and reduce Type I errors and in the process they may increase the Type II errors.

All said and done, Aadhaar (at least the way it has been designed and is being articulated) is meant to address inclusion errors. The Attorney General's submission referring to various leakages and how they could be reduced was also evidence for reducing inclusion errors, but were  used interchangeably to buttress an argument in favour of exclusion errors. This not only questions the reasonableness of the premise that analytically distinguishes between the exclusion and inclusion errors, but is also a serious affront on democratic polity, as elaborated in an earlier discussion.

While reducing inclusion errors are important, but that is not likely to reduce exclusion errors. What is more, the argument to that effect was seemingly paternalistic - the sarkar is mai-baap. Rather, any and every effort on reducing leakages (inclusion errors) needs greater concern, understanding and sensitivity to a possible increase in exclusion errors.  In fact, Aadhaar itself can be a basis for exclusion, as has been cited by petitioners.

The Attorney General contrasts Right to Physical Existence (or, Right to Life) with Right to Privacy and points out that the former is more important than the latter. This position follows from the premise that reducing inclusion errors will also reduce exclusion errors. Once one accepts the analytical separation of the two errors then the conflict between Right to Physical Existence and Right to Privacy does not hold. This is so because the people whose Right to Physical Existence is violated will also have their Right to Privacy violated. 

Yes, your honour, Right to Physical Existence matters. And, Right to Physical Existence should not be held hostage to Biometric authentication.

Earlier blog posts on Aadhaar

Idhar, Udhar, Aadhaar

Aadhaar: Privacy, National Security and Democracy

 Nir-Aadhaar

Neither for you, nor for me

Creative Identification

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

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

Idhar, Udhar, Aadhaar

The hearing on the Constitutionality of Aadhaar has been going on in the Supreme Court of India since 17 January 2018 by a five-judge bench. The honourable judges will listen to both sides and then take a decision. The purpose of the current note is to visualise Aadhaar through Section 7 of the Aadhaar Act and its importance in the recent interim order of 13 March 2018  by the Supreme Court. It will also raise some concerns on democracy, sovereignty and republicanism.

Section 7 of Aadhaar

"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 for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, 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."

Recent Interim Order
A recent interim order (13 March 2018) by the five-judge bench extends the relief provided in an earlier interim order (15 December 2017) on linking of Aadhaar to the receipt of entitlement and various service providers (banks account holders and mobile phone subscribers). The order also accepted a submission with regard to Section 7 of the Act. The relevant portions of the recent interim order read as follows:

"...On a query being made, Mr. K.K.Venugopal, learned Attorney General for India submitted that this Court may think of extending the interim order. However, the benefits, subsidies and services covered under Section 7 of the The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 should remain undisturbed. We accept the same.

Having heard learned counsel for the parties, we accept the submission made by the learned Attorney General. Subject to that, we direct that the interim order passed on 15.12.2017 shall stand extended till the matter is finally heard and the judgment is pronounced. That apart, the directions issued in the interim order shall apply as stated in paragraphs 11 to 13 in the said order. For the sake of clarity, we reproduce the said paragraphs which read as under:-

"...

13. Consistent with the above directions, we also direct that the extension of the last date for Aadhar linkage to 31 March 2018 shall apply, besides the schemes of the Ministries/Departments of the Union government to all state governments in similar terms. As a consequence of the extension of the deadline to 31 March 2018, it is ordered accordingly.”

..." 

Two Possible Interpretations
There could be two possible interpretations of the recent interim order. One interpretation, based on paragraph 13 of the earlier interim order, implies that the Aadhaar linkage to recipients under various schemes gets extended till a final judgement is taken.

Another interpretation, based on the submission by the Attorney General that the benefits, subsidies and services under Section 7 of the Aadhaar Act should remain undisturbed, implies that the extension on Aadhaar linkage to recipient under various schemes is limited. This is so because almost all schemes draw their expenditure from the consolidated funds.

Decoding Section 7
A cursory reading of Section 7 of the Act may suggest that the use of Aadhaar is for identification of a recipient of a subsidy, benefit or service and if an individual does not possess Aadhaar than other alternate and viable methods should be offered. Now, if this is the case then there was no need for the Attorney General's submission requesting that "the benefits, subsidies and services covered under Section 7... should remain undisturbed." This calls for a greater scrutiny.

A careful reading of Section 7 of the Act points out that other alternate and viable methods of identification are perhaps available only to those who have applied for enrollment to Aadhaar. In effect, at the implementation stage this could likely be a one-time exemption only.

Furthermore, Section 7 is silent on denial of benefits, subsidies or services on account of failure of identity authentication. There have been instances where individuals have been denied their genuine entitlements that have been due under employment guarantee or food security or as pension among others. In fact, there have been instances when retired employees have not been able to withdraw their provident fund for want of a life certificate because of a failure in identity authentication through Aadhaar. One may point out that the withdrawal of provident fund may not be directly linked to Aadhaar, as it is part of public accounts and not drawn from consolidated funds. The fact of the the matter is that it also has been dependent on Aadhaar.

Now, a pertinent question is why did the Attorney General bring in Section 7.  One possible conjecture is to guard against inconvenience (and perhaps contempt of court) arising out of acts by implementing agencies that leads to denial of entitlements and also to facilitate business as usual. The executive should continue to do that they have been entrusted with. Another possible argument is to prevent misuse of public expenditure. Maybe, there are some other reasons. Whatever it may be, it does provide a long leash to the executive with an articulation that inclusion errors matter more than exclusion errors. Imposing a moral imperative, excluding a deserving person from her entitlement is more serious than including a non-deserving person.

The moot point is that by accepting the submission by the Attorney General that Section 7 should remain undisturbed the paragraph 13 of the earlier order has lost bite and seemingly redundant. Given this and in view of possible denial of entitlements, the honourable five-judge bench may reconsider accepting the submission in its entirety.

Possible Affront
The denial of legitimate entitlements is serious. It is in this context that one raises a concern on the usage of the term 'benefit'. In a democratic polity by the people, for the people and of the people, the benefits and services rendered by the state either in cash or kind are entitlements. The usage of the term benefit (as also for services) seem to connote a largess. Seeking public health service or public education will no more be a matter of right; rather, it would be a charity by the state. This is an affront on democracy. What is more, this affront seems to have a legislative sanction.

Even the use of the term 'subsidy' may not be appropriate. First because entitlements ought to be facilitated through grants. Technically, all grants may be considered as subsidies, but in plain-speak a subsidy has a Fund-Bank connotation leading to a discussion on market distortions and inefficiencies. While not denying the relevance of markets, any discourse that implicitly or explicitly concedes that it is the only institution that matters is an affront on sovereignty.

As an aside, our concerns on the usage of the words would mean that in the title of the said Act "Targeted Delivery of Entitlements through Grants" should have been used instead of "Targeted Delivery of Financial and other Subsidies, Benefits and Services". This would perhaps also mean that the Act ought not to have come through as a Money Bill.

One may also mention that the World Trade Organisation also distinguishes subsidies as green, amber, blue and red boxes. Meeting entitlement through grants are those that fall under the green category. Articulating them to be 'subsidies' per se could attract them under amber, blue or red leading to a call to withdraw them in some not so distant future.  If that happens that would be an affront on the marginalised and the vulnerable, and in that sense an affront on the republic.

Concluding Remarks
Reading between the lines, a view through the prism of Section 7 of Aadhar Act gives a perspective that plays hide and seek - idhar, udhar, Aadhaar. In addition, we invoke a moral imperative indicating the seriousness of exclusion over inclusion errors and raise concerns on possible affront to democracy, sovereignty, and republicanism. We end with a call on caution. No more idhar, udhar, Aadhaar.

Earlier blog posts on Aadhaar

Aadhaar: Privacy, National Security and Democracy

 Nir-Aadhaar

Neither for you, nor for me

Creative Identification

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

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

Aadhaar: Privacy, National Security and Democracy

There is a view that the the recent deliberations on the Aadhaar case in the Supreme Court of India boils down to two broad issues - privacy and national security. It further makes a point that if the learned Judges are of the view that privacy is of paramount importance then the judgement will be in favour of Aadhaar and if they are of the view that National Security has an overriding concern then the judgement will be against Aadhaar. I will be making three-to-four submissions here.

First, Aadhaar can seriously compromise national security. This is so because all the potential defence and intelligence operatives (particularly, those who are to be hired for sensitive operations in the future) are likely to have their biometrics compromised.  

To wit, covert operations by these potential operatives are likely to be undermined. It is already being talked in hushed tones (not necessarily because of Aadhaar alone) that the entire security establishment is under close watch by our friends and foes. The fear that Aadhaar will compromise our national security is not unfounded.

Second, the articulation in favour of Aadhaar for facilitating national security is actually an argument in favour of state power. In particular, the arguments are that Aadhaar will facilitate surveillance and guard against wrong doings (an euphemism for corruption) through transparency and accountability. Doing away with wrongs is laudable, but to take a position that Aadhaar will help in this endeavour is to belittle the ingenuity of financial moguls/wizards. In fact, more often than not, they operate within the realms of law (what may be morally inappropriate need not be legally wrong). Neither the short arm, nor the long arm of law will have anything to do with them. 

The only time that the financial ingenuity become a botheration is when the market goes into a tizzy. Hear again, in the name of the economy it is the moguls that are to be bailed out. It is another matter that Aadhaar may create a perception that it is guarding against the moguls misdemeanour because each and every individual does experience it first hand that each and every step of theirs is under close watch and scrutiny. It is not for them to comprehend that the closed gates are for the ant and not for the elephant. 

Third, the clamour for state power (along with concerns for national security) is nothing specific to India. It is global. Furthermore, it questions the core of democracy by weakening the importance of separation of powers. It is beyond Arrow's impossibility. It may draw similarities from Kalecki's intermediate regimes (see KN Raj's take on intermediate regimes), but is also beyond that. It takes a form where the power of money (or market: note that the term market is not to provide space for exchange of goods and services through large number of players, but, rather one that talks of power through market share, and hence, implicitly does away with the large number of smaller players - small is no more beautiful) becomes pervasive.

Under such a scenario, the four pillars of democracy - the executive, the legislature and the judiciary as also a free press - could become subservient to money power. A possible outcome is that one of the pillars of democracy, while retaining its subservience to money power, gets an upper-hand over the other pillars. The global happenings indicate that it facilitates a supremacy of the executive over the other wings - a takeover by/for/of the executive. The over-empowering role of money calls for an emerging need for political economy and/or political theory to address these concerns.

As an aside, a fourth point is that the debate between privacy and security should not be seen in binary terms. No, I am not referring to the umpteen positions that came out in the deliberations in the Supreme Court and are undoubtedly important and could also impact the judgment. But, sticking to the two broad concerns there can also be the possibility of a middle-path between privacy and national security (nay, state power).

However, there can be pitfalls in the middle-path. There could be a judgment that supports the perception that allows the state to be vigilant against wrong-doers and at the same time gives space for privacy concerns for all those who can take recourse to the long-arm of law. Such a middle path could also lead to a tilt towards state power that gives supremacy to the state power through the executive. Only time will tell.

To conclude, Aadhaar, instead of facilitating national security, actually poses a serious problem against national security. Further, Aadhaar is not likely to have a major impact against so-called moral wrongs because, more often than not, these happen within the realms of law. Globally, one observes a trend where it is difficult to maintain separation of powers because of the overbearing role of money or market power. When it comes to the Aadhaar judgment, one can only anxiously wait.

Earlier blog posts on Aadhaar

Nir-Aadhaar

Neither for you, nor for me

Creative Identification

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

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

Neither for you nor for me

Neither for you,
nor for me.

Neither for the Soldier,
nor for the Farmer.

Neither for Country,
Neither for Mother Earth.

Neither for rooting out evil,
Nor for ushering in good days.

It is all a plea,
To fool you and me.

---

ना आपका, 
ना हमारा । 

ना जवानों का, 
ना किसानों का ।

ना देश कि, 
ना धरती कि ।

ना बुराइ रोकने, 
ना अच्छाइ बढ़ाने ।

ये तो है बाहाने, 
हमे अंगूठाछाप जो बनाने ।

---
ନା ଆପଣଙ୍କର, 
ନା ମୋର । 

ନା ସୈନ୍ୟଙ୍କର, 
ନା ଚାଷୀଙ୍କର ।

ନା ଦେଶର, 
ନା ଧରିତ୍ରୀର ।

ନା ଦୂଷ୍କର୍ମ କମିବା ପାଇଁ, 
ନା ଭଲ ଦିନ ଆସିବା ପାଇଁ ।

ଇଏ ସବୁ ବାହାନା, 
ଆମକୁ ଭୂତ୍ତେଇବାର ଯୋଜନା ।

This is a republic day thought. A trilingual post (in English, Hindi and Odia). It may sound pessimistic, but do read between the lines for ushering in some optimism. While I started writing, I had Aadhaar in mind (note the last sentence in the Hindi post). But, then ...  For some Aadhaar related blogs of mine, see.

Nir-Aadhaar

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Creative Identification

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

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

Creative Identification

1. Creative Identification

For progress to happen, 

Schumpeter tells us 

the need for creative destruction. 

For democracy to deepen, 

Martin Luther King tells us 

the need for creative tension.

For targeting to go on, 

UIDAI tells us 

the need for creative identification.

2. From fingerprints to shit hole

First, our fingerprints, 

and our iris. 

Now, there is a clamour, 

for our face. 

It is not far when they will 

trace our footprints. 

And then they will 

map our moles. 

Including those,

deep inside our shit hole.

Earlier versions of these are available as my facebook post here and in my twitter here and here. 

Earlier blog posts on Aadhaar

Nir-Aadhaar

Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)

Aadhaar Interim Order Calls for Some Clarification

If a Lie is told Three Times

Aadhaar, Radiagate and Cablegate 

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

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.]

Aadhaar Interim Order Calls for Some Clarification

The Supreme Court of India today in the Writ Petition (Civil) No. 494 of 2012 with regard to Aadhaar dealing with Right to Privacy have passed the order requesting the Chief Justice of India to refer the matter to a Bench of appropriate strength.

Till the matter is decided by the larger Bench, an interim order was also passed. It has the following aspects:

1. The Union of India shall give wide publicity  in  the  electronic  and print  media including radio and television  networks  that  it  is  not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for  obtaining any benefits otherwise due to a citizen;
3. The Unique Identification Number or the Aadhaar card will not be  used by the respondents for  any  purpose  other  than  the  PDS  Scheme  and  in particular for the purpose of distribution of  foodgrains, etc. and  cooking fuel, such as kerosene. The Aadhaar card may also be used for  the  purpose of the LPG Distribution Scheme;
4. The  information  about  an  individual  obtained   by   the   Unique Identification Authority of India while issuing an Aadhaar  card  shall  not be used for any other purpose, save as above, except as may be  directed  by a Court for the purpose of criminal investigation.

From the above four points, a clarification from a lay perspective is this. Is the third point in the interim order to be read in conjunction with the first two points (that seems to be the preferred interpretation if the first two points are a logical priority) or independent of the first two points (that may be preferred by those implementing these schemes)?

If one goes by the logical priority interpretation then it means that the Government of India can use Aadhaar to facilitate the distribution of foodgrains and kerosene under the public distribution scheme (PDS) or they may use it for the purpose of the liquified petroleum gas (LPG) distribution scheme. However, absence of Aadhaar cannot be a basis to deny any benefits under these schemes otherwise due to a citizen.

It may be recalled that the Government of India has already linked the distribution of subsidies under LPG with an Aadhaar card linked to a bank account. If this status quo has to continue in line with the interpretation that would be preferred by the implementing agencies then those without an Aadhaar card would be denied the subsidies under the LPG distribution scheme. However, even under the implementing agency interpretation, the denial of an LPG connection to those without an Aadhaar Card will be in contravention of the second point in the interim order.

It would help the lay public if legal luminaries can clarify this. Till it is done, the differences between the logical priority and implementing practicalities will continue.

Some of my earlier blogs on Aadhaar are:

Right to Privacy, Aadhaar, and Democracy also reposted at LSE blog 

Aadhaar, Radiagate and Cablegate

If a lie is told three times...