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.]

Right to Privacy, Aadhaar and Democracy

Introduction
There is much talk today (last week of July 2015) in India on the Right to Privacy after the Attorney General Mukul Rohatgi argued in the Supreme Court that it is not sanctioned by the Constitution. In arguing so, he referred to an eight-bench decision of 1954 by the court while defending the roll out of Aadhaar (a biometric unique identity card with other information) to facilitate provisioning of public services and also to root out possible leakages in the delivery of these services.

The case against Aadhaar combines a number of civil writ petitions; the foremost among them being the one filed by Justice KS Puttaswamy in 2012. The ruling on privacy will have important implications on the relationship between the individual and the State that can go beyond the current case.

Individual versus State

Imagine a situation without a State. Each and every individual will have the right to do what they want. There will be no restrictions. But the free-for-all regime could lead to chaos. To bring order that makes life simpler for all concerned, the individuals agree to regulate themselves (a form of social contract) to enhance their own self-interest. Such regulated structures take different hues and forms that in some sense is based on the space provided for individual freedom and rights, the control that the State has in regulating these, and who constitutes the State.

In a democracy, as in India, the State is "by the people, for the people, and of the people." Of course, all individuals cannot run the State. Thus, some are selected to different positions to facilitate legislation, execution, and adjudication. In this, the Constitution has an important role in having an appropriate balance between individual rights and the State's regulations controlling those rights. Or, as the important adage goes: "The right to swing my fist ends where the other man's nose begins." The State has to ensure individual rights to swing their fists, but with appropriate restrictions so that others are not hurt. This has important implications for the current arguments on Right to Privacy.

Right to Privacy
Aadhaar is supposed to provide a unique digital record of each and every resident (not citizen) of India. It has socio-economic and biometric (iris scan of the eye and finger prints) information of the individual. The information is collected by third-party entities who have been contracted or sub-contracted to do this. There is no law mandating its collection. There are also no legal provisions mandating data protection and putting in place appropriate checks and balances against misuse.

Thus, one could contend that if there is a law mandating its collection and also provisioning for checks and balances  against misuse even when third-party entities are involved then there should not be a major problem from the privacy perspective. But, a law should not be passed because the State is already collecting this information, it should be passed because there is a need for it.

A look at the case with regard to the eight-bench judgement of 1954 by the Supreme Court cited by the Attorney General indicates that the court upheld the State's right to search and seize information and documents to unravel possible misappropriation and embezzlement of funds. In other words, the judgement empowered the State to act against someones inappropriate and improper swinging of fist. Citing this as a right of the State to conduct search and seizure or collect information because individuals do not have a right to privacy is like an argument that the State has the right to intrude into individual's lives. This implies that the State has the right to swing its fist in whatever direction it pleases. But, this is contrary to ones understanding that the role of the State is to regulate and control inappropriate swinging of fists by others. In addition, the various branches of the State should guard against the wrongful swinging of the fist by any of the branches of the State.

What is generally argued in favour of Aadhaar, as indicated earlier, is that it would curb the inefficiencies in the provisioning of public services and do away with rent seeking (an euphemism for corruption). These two powerful economic justifications reinforces the rightful role of the State to prevent wrongful swinging of the fist. Therefore, it is necessary to dwell into this economic merit.

Economic Merit   
It is argued that the Aadhaar digital record will have biometric information of each and every individual and thus the benefits to a particular individual will be transferred to that individual's bank account that is also linked to the unique biometric card. This will do away with middlemen, cut delays, and there would be no leakages.

One concedes that there is a merit in this digital linkage of monetary transactions. Mobile monetary transactions have become common place in many parts of the world and some telecom operators also provide it in India. The world is also moving in a direction of paperless monetary transactions. However, there is no need to link the collection of biometric information to take this advantage of digital and paperless monetary transaction. In fact, the State has also been using such transactions even without they being linked to Aadhaar.

In suggesting an alternative mode of transaction that does away with certain inefficiencies, it is not proper to assume that the transition to the new medium will be seamless and without errors and that there are no inefficiencies there. This means that there ought to have been pilot interventions, with due legal diligence and  their pros and cons discussed with an open mind and shared with the larger public before it is made into a law.

Another important economic concern that misses the eye is that the whole exercise of provisioning an Aadhaar has costs. It has budgetary implications that draws on taxpayer's money. Besides, there is a duplication of effort of some of the information collected. For instance, all those who are issued a passport also provide their biometric information. This is also partially the case for obtaining a driving licence. We also have the voter identity card and then there is the permanent account number for income tax purpose. Can we not do away with these multiple entities. Proponents of Aadhaar may state that it eventually will. If that is the case, then there is in fact greater merit that this was properly piloted, debated, and only when convinced then put into law with appropriate checks and balances. This takes us to the non-economic domain.

The Non-economic Domain
Technology has advantages and it should be used to enhance those. But, we should not lose sight that technology is only a means to an end. In a democratic polity, the end cannot be devoid from peoples life and liberty with dignity, an aspect enshrined in Article 21 of the Constitution.

The argument in favour of Aadhaar are linked to provisioning of public services. But then why insist on an Aadhaar card even on those who do not want to take benefit from public services. Extending it to all should be considered as an unnecessary exercise. For instance, this travesty is amplified by insisting on linking Aadhaar to LPG beneficiaries (not participants or customers) and then asking these individuals to relinquish their subsidies. So, why link it to their Aadhaar card, which in any case is still not mandatory for provisioning of public services.

The most important anomaly one finds is to link public provisioning in terms of cash transfers to Aadhaar linked bank account. One understands that the NITI Aayog is now trying to look at poverty in multiple dimensions, but if interventions will only be in monetary terms, irrespective of the dimensions of deprivation, then it is back to square one. Deficiencies in the real world cannot just be left to cash transfers. Aside: It seems that this could be the beginning of a move to do away with public provisioning.

It is also argued that in this digitally connected world, the personal information of the individuals are there in the public domain. Data theft is now in the click of a button. A scaring, but unfortunate truism. But, then this is no argument for the State to facilitate this process. Rather, to the contrary, the State should be looking into ways and means to prevent this. This would be commensurate with the thinking that the State's role is to prevent individuals from being punched in their nose.

Conclusion
To sum up, the arguments in favour and against Aadhaar are linked with the Right to Privacy. Its outcome in the court will have implications beyond the current case. The State has to walk a tight rope balancing individual rights with appropriate restrictions. One also should not lose sight that the State, as also money and technology are all means to an end. In the end, for a democracy, it is people that matter.

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Other Related Links

Rajya Sabha TV: The Big Picture - Right to Privacy: Where Does it Begin and End

Kalpana Kannabiran: No Constitutional Ground to Deny Right to Privacy

My Earlier Blogs on Aadhaar

Aadhaar, Radiagate and Cablegate

If a lie is told three times...