Written by Nandan Nilekani
The UIDAI system is completely ignorant of the usage of Aadhaar for seeding and for the Aadhaar Payments Bridge.
Mahatma Gandhi refused to join the Constituent Assembly that wrote
our wonderful Constitution, but his advice to some of the members was,
“Whenever you are in doubt, apply the following test. Recall the face
of the poorest and the weakest man you may have seen, and ask yourself
if the step you contemplate is going to be of any use to him. Will he
gain anything by it? Will it restore him to control over his own life
and destiny? Will it lead to swaraj for the hungry and spiritually
starving millions?” I submit that the recent Supreme Court (SC) interim
judgment on Aadhaar does not pass the Mahatma’s test and it must be
appealed. All it needs is one small tweak.
To meet the unleashed aspirations of a billion people, “business as
usual” will not do. The Indian state must use technology in a
transformational way to accelerate social and economic justice and
expand opportunity for all at scale and speed. Two of the four SC
directives are unfair. The first two — wide publicity of Aadhaar being
non-mandatory and ensuring that no benefits due to any citizen are
denied without an Aadhaar card — are useful. But the last two — no use
of Aadhaar cards or its information for anything other than PDS ration
shops and LPG cylinders — must be appealed on the grounds of individual
choice and the freedom of the executive to frame policy.
But let’s start with the facts that dispute some of the filings in
this case. For example, in the banking sector, Aadhaar is completely
voluntary and has not been made mandatory by the RBI. No banking
information is shared with the Unique Identification Authority of India
(UIDAI); all customer banking transactions are held by regulated banking
entities governed by bank secrecy laws. The UIDAI system is completely
ignorant of the usage of Aadhaar for seeding and for the Aadhaar
Payments Bridge (maintained by the National Payments Corporation of
India, an RBI-regulated entity). When a customer does an Aadhaar
authentication at, say, a microATM, the Aadhaar system knows that an
authentication was done, but not the purpose for which it was done.
Similarly, when an electronic know your customer (eKYC) is done, the
Aadhaar system releases the name and address to a regulated entity, but
does not know the purpose. Also, whenever a person’s Aadhaar number is
used for an authentication or an eKYC, he gets an alert by SMS/ email
that his number has been used. The Aadhaar system ensures privacy by
design — it uses a federated architecture, that is, banking data is
wholly inside the banking system, healthcare data wholly in the
healthcare system, etc. Moreover, a person can elect to “lock” her own
Aadhaar number, so no authentication or eKYC is ever done without her
“unlocking” it. Biometric data is never shared by the UIDAI under any
circumstances.
The first ground for appeal is the freedom of individual choice.
Enrolment in Aadhaar is voluntary and individuals granting permission
for the UIDAI system to share their name and address in a secure way
with another system for their own convenience and benefit hardly
qualifies as a violation of their right to privacy. The upsides of the
voluntary use of Aadhaar for financial inclusion, for example, are
immense. Aadhaar is used by individuals in the banking system to: First,
open an account with eKYC; second, seed an already opened bank account;
third, receive government benefits through the Aadhaar Payments Bridge;
and fourth, withdraw money from a microATM using Aadhaar biometric
authentication. All four uses of Aadhaar are voluntary, but simpler,
faster, cheaper and far more convenient than the alternatives. The data
is only shared with the customer’s consent. Most importantly, the same
data is already widely available on the internet via election rolls.
The second ground for appeal is based on executive freedom to frame
policy. On what basis did the court choose the use of Aadhaar for gas
cylinders over other subsidies? Why allow ration shops to use Aadhaar
for authentication and eKYC to “open” a ration account, but stay silent
on Aadhaar’s eKYC to getting a bank account or a SIM card? Why be silent
on the use of Aadhaar authentication and eKYC for other social and
economic interventions like biometric attendance, the Jan Dhan Yojana,
the Mahatma Gandhi National Rural Employment Guarantee Scheme, eSign
(digital signatures) and new payments banks? Post this judgment, the
Election Commission, the Pension Fund Regulatory and Development
Authority and the Employees’ Provident Fund Organisation have put their
Aadhaar usage plans on hold. Government expenditure in India will rise
substantially from the current 17 per cent of GDP over the next few
decades; a large part of this expenditure growth will be subsidies for
our poor. Fraud is the biggest enemy of the Rs 4 lakh crore India
already spends on subsidies. Why deny the Indian state the use of
Aadhaar for efficient and effective subsidy-targeting and providing
conveniences to its people, as long as the use of Aadhaar is voluntary?
India was a reckless experiment in 1947 — poor, large, linguistically
rich and religiously diverse countries were not supposed to survive as
democracies. But the radical innovation of a Constitution that gave
universal franchise — some women in Switzerland, for instance, only got
to vote in 1972 — has created a wonderful democracy. However, it is
important to acknowledge that over the last 69 years, our political
democracy (one man, one vote) has not always been complemented by social
democracy (one man, one value) and economic democracy (one man, one
opportunity). Aadhaar is critical plumbing for the Indian state to
leapfrog developed countries in creating a modern welfare state, end
poverty, create opportunities and meet our tryst with destiny.
My humble submission is that the Supreme Court’s interim judgment
needs only one small tweak. An Aadhaar holder must be able to use her
number and share her own name and address in any application of her
choice, as long as it is voluntary.
The writer is former chairman of the Unique Identification
Authority of India, and co-author of the forthcoming book ‘Rebooting
India: Realising a Billion Aspirations’.
