Is Aadhar indeed Niraadhar? A Techno-Legal Assessment

It is election season again in India. Battles royale, of the ballot kind, are being waged day in and day out. Arguments, rebuttals, allegations, counter-accusations...they are all running thick and fast in a race against time. Every candidate in the fray is out to get a substantial mindshare of the electorate and to woo constituents to cast votes favorably.

One such premier, gladiatorial match-up is in the parliamentary constituency of Bangalore-South. In the heat and dust of his campaign, it is alleged that Sri. Ananth Kumar-ji, the BJP candidate for the Bangalore-South parliamentary constituency, called ‘Aadhar’ as ‘Niraadhar’.

This had Sri. Nandan Nilekani-ji, up in arms and crying foul with a swift rebuttal in his blog post of 25th March 2014. His defense was pretty comprehensive.

So then, who was right about the project? To get to the truth, I began an earnest, unbiased and independent search for the pros and cons of the Aadhar Scheme. I hope the summary of my findings will help the reader separate the wheat from the chaff.

Objective or Purpose

First I looked for the objective or purpose with which Aadhar was conceived. Surprisingly, there is no clear-cut objective or purpose mentioned on the UIDAI website.

The “UIDAI Strategy Overview” document indeed does throw some light on the objectives, which essentially revolve around: 

1. The inability to prove identity being a barrier preventing the poor and underprivileged from accessing benefits and subsidies. 
2. The provision of a mechanism, which not only uniquely identifies a person, but also ensures instant identity verification. Such a system eliminates frauds and duplicate identities, since individuals will no longer be able to represent themselves differently to different agencies.  

What struck me as odd though was why, even after (a) close to 70 years of independence, and (b) almost 50 years of enactment of The Registration of Births and Deaths Act, 1969, any individual lawfully residing in the country should have difficulty establishing his or her own identity through a birth certificate or otherwise.

Also, it seems counter-intuitive that frauds and duplicate identities are due to individuals representing themselves differently to different agencies. I would imagine systemic loopholes are exploited and leakages occur because individuals represent themselves differently with the same agencies.

Nevertheless, I next reviewed The National Identification Authority of India Bill, 2010 hoping to find some answers for the ‘Purpose and Objects’ of the Aadhar Scheme. The Bill states that it is: 
“A BILL to provide for the establishment of the National Identification Authority of India for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals and manner of authentication of such individuals to facilitate access to benefits and services to such individuals to which they are entitled and for matters connected therewith or incidental thereto.”  

I just can’t fathom why the Bill doesn’t read “...individuals legally residing in India...”? Why should identification numbers be issued to and benefits conferred on individuals unlawfully residing in India?

It is truly ironical that in a bid to plug loopholes, the UIDAI has created another loophole in the system. Besides, couldn’t the same objective (of unique identification of legal residents) be met through suitable amendments to The Registration of Births and Deaths Act, 1969 and The Census Act, 1948? Puzzling, to say the least!

Legality of UIDAI

Article 11 of the Constitution of India reads: 
“Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” 

“Unique identification (of residents)” is a “matter relating to citizenship”. It is unambiguous that only Parliament is empowered to legislate in such matters. In exercise of its power, the Parliament has enacted The Citizenship Act, 1955.

Further, The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 have provided for the issue of “National Identity Card” and unique “National Identity Number” to every citizen. Couldn’t these Rules have been amended to provide unique “National Identify Number” to foreign citizens legally residing in India?

More importantly, the UIDAI came into existence under the Planning Commission through an Executive Order. This has brought a ‘matter relating to citizenship’ into the realm of the Executive wing of government. In other words, the Executive has wrested a power vested in Legislative to establish UIDAI. This is in violation of our Constitution.

The question that then begs to be asked: Why was it necessary to bypass Parliament on a matter of such grave national importance? Baffling, indeed!

Privacy Concerns 
Article 21 of the Constitution of India reads: 

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

The Supreme Court has held in the Unnikrishnan [1993 AIR 2178] and Puthumma [(1978) 2 SCR 537] cases that ‘personal liberty’, enshrined in Article 21, is of the widest amplitude. Further, the Apex Court in the Govind v. State of MP [1975 AIR 1378] case has held that ‘personal liberty’ covers the ‘right to privacy’.

Therefore, it follows, based on harmonious construction of the Constitution, that “no person shall be deprived of...the right to privacy except according to procedure established by law.”  

The capture of biometric data of citizens under an executive order is NOT in accordance with the procedure established by law under the Constitution.

So then, why was the Constitution subverted to establish UIDAI? Confounding!

Introduction of Applicant 
The ‘Aadhar Card Application form’ provides an option for the introduction of applicants, who cannot provide proofs of their respective identities, addresses and dates of birth.

Interestingly, there is no provision or procedure for such "introducer" to vouch for the legality of the residential status in India of the ‘Aadhar Card applicant’. On top, there is no criminal culpability for introducing an ‘illegal migrant’. This no doubt makes it easy for illegal immigrants to get the ‘Aadhar Card’.

The fundamental question still remains: Why even bother to give an Aadhar card to illegal immigrants (instead of repatriating them to their respective countries of origin) and confer benefits on them at the taxpayers’ expense?

Biometric Data 
It is well-known that quality of lighting affects the accuracy of iris scanners. Iris recognition is also susceptible to poor image quality; and, it is sensitive to shaking of head. Cataract surgery too can change iris texture in such a way that iris pattern recognition is no longer feasible or the probability of falsely rejected subjects is increased. Furthermore, alcohol consumption causes recognition degradation as the pupil dilates / constricts causing deformation in the iris pattern.

Fingerprints too may be distorted and become unreadable or unidentifiable if the person’s fingertips have dirt on it, or if the finger is twisted during the fingerprinting process. Injuries (deliberate or otherwise), trauma or burns to fingertips can all cause fingerprints to become different or unreadable.

What measures and processes has UIDAI envisaged and used to nullify or minimize the impact of the above technological shortcomings in the use of biometric data for unique identification? The UIDAI website reveals very little on this. Hence, quality and reliability of Aadhar data is an area of uncertainty.

Redundancy of Data Collection   
Copious amounts of data on the poor and underprivileged sections of society are already available with various other government bodies and agencies. Reports of the Department of Food & Public Distribution put the number of ration cards (BPL, APL and AAY cards) at almost 25 crores. Survey data of the Ministry of Health and Family Welfare puts the average size of a household at 4.9 (Page 23, National Family Health Survey-3, 2005-06, Vol. I). This means that data of about 120 crore people, who are the beneficiaries of ration cards, is available with government. 

Further, according to the “Report to the People” of Ministry of Rural Development, over 13 crore job cards have been issued till 2^nd February 2014. Published data of the Reserve Bank of India show that 1.3 crore Kisan Photo Cards have been issued.

Making ample provisions for redundancy and duplication in data (due to fraud or otherwise), it can be safely assumed that (photo-based) identification information of at least 80-90 crore people is available. Besides, data of all residents and households is available in the National Population Register of the Census Organisation of India.

Where then was the need to reinvent the wheel by initiating the Unique Identification Project? Mystifying indeed! 

Financial Impact of UIDAI 

Sri Nandan Nilekani-ji in his blog-post claims that the total expenditure of UIDAI has been just Rs. 3,813 crores as of December 2013.

However, it has been estimated that the Indian government will end up paying Rs. 113 per person for enrollment. Keeping in mind that about 60 crore Aadhar cards have been issued till date, the total cost works out to almost Rs. 7,000 crores. This clearly does not include expenditure on organization, advertising, equipment, infrastructure, overheads, operations, etc. of UIDAI.

What then is the actual (accurate) investment till date on the Aadhar Project? Well, your guess is as good as mine.

Conclusion

In view of the above, it seems Sri. Anant Kumar-ji has enough grounds to validly dub Aadhar as “Niraadhar”!