‘Shocking that finance minister is working towards restoring access of private parties to Aadhaar’

RTI and governance activist Anupam Saraph emphasises that it would be a lack of courage and responsibility to not hold Justice Chandrachud’s judgement as the operating order

Dr Anupam Saraph, an expert in governance, informatics and strategic planning, has served as advisor to several national and international organisations, including UNESCO and the World Economic Forum through its Global Agenda Council for Complex Systems. He has written extensively on Aadhaar and is a vocal critic of the biometric and demographic ID system. Dr Saraph answers questions posed by Ajith Pillai in the wake of the last week’s Supreme Court judgement giving Constitutional validity to Aadhaar. Excerpts:

There is talk that corporate access to Aadhaar data may be restored by the government through some new legal provisions. Finance Minister Arun Jaitley hinted at this during a press briefing following the Supreme Court judgement of September 26. Do you think this is possible through the Data Protection Bill, which is likely to be tabled in the winter session of Parliament?
The Data Protection Bill is actually an Aadhaar Protection Bill. It creates and protects rights for third parties who wish to exploit the data you generate in your relationships with your governments or service providers. Aadhaar is the handle that enables these third parties to generate transactions that you did not undertake. It enables third parties to generate transactions of ghost and duplicate Aadhaar numbers that are proxy to those laundering money or committing crimes. Without the current Data Protection Bill these third parties are not protected from you and your governments or service providers. It is therefore a natural vehicle to protect the interests of third parties who wish to use and access Aadhaar data.

It is shocking that the Finance Minister, who is supposed to be a representative of the people and protect the republic and its democratic processes, is already working to protect private interests when the Supreme Court has cautioned on Aadhaar and even declared it as a fraud on the Constitution of India. It will be working against national interest and the people of India to introduce the Data Protection Bill in its current form or to use any similar vehicles to restore access of private parties to Aadhaar.

What are the provisions in the draft bill which can be exploited for this purpose?
The entire Data Protection Bill is exploitative. It turns transacting parties into data subjects to be exploited by data fiduciaries who have nothing to do with the transactions. I'm already hearing many perverse processes from third parties who want to restore their access to Aadhaar. I do not wish to be creative and suggest any ways to these private interests who want to be perverted and exploit the draft bill to restore access to Aadhaar.

Monetisation of data seems to be at the core of the Aadhaar programme? Is this strange for a scheme meant to reach welfare measures and services to the poor?

The Unique Identification Development Authority of India (UIDAI) has stated under the Right To Information (RTI) Act that they are not responsible to certify the biometric or demographic data or even the use of this data. They do not certify the identity, address or date of birth of anyone. They have also stated under RTI that they cannot retrieve a unique record with a biometric. They have no idea of the number of unique biometrics in their database. They do not even know the primary documents used as proof of identity and proof of address to issue any Aadhaar number. They have also stated under RTI that they do not identify anyone. They merely authenticate the biometric or demographic data associated with an Aadhaar number. The UIDAI has also reiterated under RTI that they are not responsible for any transactions undertaken with Aadhaar.

It is a forgone conclusion that Aadhaar cannot be used as the basis to identify anyone. It does not serve as an impartial arbitrator of identity. It is not useful for undertaking any legally binding or verifiable transactions. The Aadhaar data, in legal terms, is completely useless. The only way this data can be monetised is by using it to create ghost, proxy, or benami transactions including financial transactions, property transactions, voting and of delivering subsidies, benefits or services. That is precisely why, driven by Aadhaar, exclusion, identity frauds and associated crime have grown the black economy exponentially.

...almost 51% of the Aadhaar numbers have never been used for biometric or iris authentication anywhere, one can conclude that most of them are ghosts or duplicates
Dr Anupam Saraph

Can you explain in simple terms how data can be commercially exploited? For instance, how does it help payment banks and e-wallets?
Aadhaar enrollments have been outsourced to agencies who will not be affected by the consequences of failure of identification. The enrollment agencies can benefit by creating ghosts and duplicates. Since no one certifies the enrollment and the identity or data associated with an Aadhaar number, no one cares about the huge ghosts and duplicates introduced into the database. In fact, because the database is not verified and audited either, it has offered an incentive to create these ghosts and duplicates to create proxies for claiming subsidies, benefits and services as well as facilitating money laundering using benami bank accounts opened with these numbers and un-auditable money transfers using Aadhaar Payments. This enables commercial exploitation of Aadhaar.

This is evidenced in the insistence of the finance ministry to shift money transfers to beneficiaries through their verified bank accounts without using RBI's NEFT and instead using the Aadhaar Payments Systems of a non-government private company, the National Payments Corporation of India. AirTel Payments Bank, for instance, created 37 lakh bank accounts and received Rs167 crore of LPG subsidies into these accounts using Aadhaar Payments and Aadhaar as a proxy for beneficiaries.

How important is Aadhaar for the government’s Digital India push?
Governance cannot be digital for the sake of being digital. It has to further the public interest of justice, equality, liberty and fraternity. It has to protect the national interest to ensure a sovereign, socialist, democratic republic. It has to further missions that are in public or national interests. Aadhaar is neither in public interest nor national interest. It erodes, even destroys a person’s dignity, liberty, equality and access to justice. Aadhaar corrupts and destroys the national databases that protect the sovereignty and its democratic institutions.

Aadhaar is not only completely unnecessary for India’s digital push, it damages its digital push. I’ve written earlier about digital initiatives needed for India here.

In his dissenting judgement, Justice DY Chandrachud pointed out that there is no institutional accountability for UIDAI. Without that, do you think, the Aadhaar Act will change things?
Justice Chandrachud is absolutely correct in pointing out that the UIDAI has no accountability. This is true in more than just being accountable to another body. It has no skin in either the issue or use of the Aadhaar. It takes no responsibility for the legal validity of any Aadhaar number or the data associated with it. It takes no responsibility to the use or the consequences of the use of any Aadhaar number.

Unless the UIDAI was the ministry of delivering subsidy, benefit or service and was responsible for the delivery, how would it become accountable? To make it accountable, the government will need to scrap every other ministry and make the UIDAI into a super ministry of everything. It will have to scrap all the Acts and merge them into the Aadhaar Act. There would be no role for the Ministry of Civil Supplies, the Ministry of Petroleum, the Registrar General, the External Affairs Ministry, the Home Ministry, the Transportation Ministry etc. All these and more would have to be merged into the UIDAI.

How important is the dissenting judgement? It’s being seen as an aberration in sections of the media. Should we be taking it so lightly?
Justice is not about a majority judgement. It is about tilting the scales back to restore equality in liberty and dignity for the parties.

The judgement of Justice Chandrachud is the most important among the three judgements because it highlights the imbalance of the scales of liberty and dignity. It highlights the imbalance of the scales to ensure a sovereign, socialist, democratic republic. It is important because even the precautionary principle would require reading only his judgement, not the others. For if his judgement is written off as a dissenting view, it is the promise of the Preamble to the Constitution of India to “we the people” that is at stake, not a mere digital initiative as in the case of the other judgements.

It would be not only a lack of imagination but courage, responsibility and national interest to hold Justice Chandrachud’s judgement as not the operating order.

Are there any positive aspects from the majority judgement?
Operationally, the majority's judgement prohibits use of Aadhaar for facilitating any transaction, subsidies, benefits and services that have no expenditure drawn from the Consolidated Fund of India. It also prohibits the expansion of the scope of subsidies, services and benefits to widen the net of Aadhaar. It also reads down the scope of ‘benefits’ and ‘services’ as mentioned in Section 7 to limit them to those which have the colour of some kind of subsidies. For example, this would exclude the issue of birth, marriage and death certificates, drivers’ licenses, passports as well as property transactions. Also, it is now possible to file a police complaint if you are asked for Aadhaar beyond the permitted uses.

Will bank accounts linked to PAN numbers and indirectly to Aadhaar be still vulnerable. If so, how?
From the UIDAI's affidavit to the Supreme Court stating that almost 51% of the Aadhaar numbers have never been used for biometric or iris authentication anywhere, one can conclude that most of them are ghosts or duplicates. If Section 139AA of the Income Tax Act (which makes it mandatory to quote Aadhaar numbers for filing tax returns or allotment of PAN numbers), continues to be operative, it will generate fake PAN through fake Aadhaar. This will continue to generate benami bank accounts that are Aadhaar enabled with these fake PAN numbers. Aadhaar enabled bank accounts can thus receive and make money transfers using Aadhaar Payments.

While the linking of Aadhaar to bank accounts has been declared illegal, Aadhaar payments, if allowed to proceed, will continue to use these Aadhaar linked PANs to be the means to revive or make Aadhaar payments to siphon subsidies or launder money.

Many newspapers seem to suggest that the surveillance raj has been tamed. Is this true or is the threat very much alive?
Aadhaar is uncertified, unverified and unaudited data. It is not useful to surveil anyone with certainty. If it was aimed at surveillance, the data would have been more rigorously generated.

Aadhaar has corrupted or destroyed our right to be identified as we choose. It has violated our right to personhood. It has harmed our nation by destroying the government and private service providers’ ability to recognise real persons from fakes. It is the Acquired Immune Deficiency Syndrome (AIDS) of a nation. It is deadlier than surveillance, it kills the country, person by person, by causing suffering, exclusion and civil death.

What about the challenges ahead. How will the data spread so far and wide be ever recovered and destroyed? Can this ever be done?
I have already argued the merits and grounds for upholding Justice Chandrachud’s judgement. The biggest challenge is to operationalise his and not the “majority" judgement.

Some reject Justice Chandrachud’s judgement, arguing that it is a minority judgement. They forget that the last operative order of the Supreme Court was from a unanimous five-member bench headed by the then Chief Justice of India, passed on October 15, 2015. Three judges, or even four judges cannot overrule the previous order that limited the scope of Aadhaar. Unless legal experts find other means to operationalise Justice Chandrachud’s judgement, it may be necessary to refer this matter to a nine-member bench.

Meanwhile, Justice Chandrachud’s orders to hold Aadhaar in abeyance has wisdom. The problem is not with the spread of data as much as it is of the use of uncertified data and treating it as identification of individuals. The use of uncertified Aadhaar data has to be stopped as also treating Aadhaar numbers, Aadhaar cards or Aadhaar authentication as identification.

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