People standing in queues to get enrolled into Aadhaar (Source: PTI)

Supreme Court Verdict Fills Gaps In The Aadhaar Act: Rajeev Chandrasekhar

The Supreme Court’s verdict on the validity of Aadhaar will fill the cavities and fix the weaknesses of the Aadhaar Act of 2016, according to Rajya Sabha Member of Parliament and Bharatiya Janata Party member Rajeev Chandrashekar.

“It’s (Aadhaar) use as a corruption tackling mechanism on public spending remains intact,” Chandrashekar told BloombergQuint in an interaction. “It will remain the principal tool to plug leakages in public spending. It will remain the principal tool to weed out duplicates and fakes in the overall government subsidy system which has grown in the last 70 years.”

You can watch the full interaction here.

Heres an edited transcript of the interaction

You have been expressing your contention against Aadhaar and UIDAI from 2010. A lot has happened in the meanwhile. Then the NDA came to power, they have expanded the scope of Aadhaar very aggressively. You are now part of the NDA. How does this juxtapose with the contention that you have had of Aadhaar and can you tell us what those issues were?

In 2010, when I was one of those lonely voices arguing that Aadhaar was a bad idea, I was arguing that there was no debate, scrutiny, legislation and protection for the consumers whose data were being sought to be included in this database and then there was an absolutely sloppy enrolment process where people who were illegal immigrants was allowed to get Aadhaar and then use that as a gateway to get passports and voter IDs. That was the original argument which was made in 2010.

Progressively after the NDA came to power, there were legislations, debates in Parliament. Aadhaar was moved from a national identification platform to a direct subsidy delivery platform, a much narrower scope of what it was meant to do. There were legislations which were passed in parliament. In 2017, the Supreme Court found that privacy is a fundamental right. Between 2010 and 2017, between what Narendra Modi government has done and Supreme Court has intervened, the Aadhaar is far cry from what we saw the UPA do in 2010.

After 2017, there were two schools of opposition to the Aadhaar that rose into prominence. One was the political school led by Congress which was opposing Aadhaar for issues which are still not clear to me even as Aadhaar was positioning itself as an effective mechanism to weed out corruption and leakages in public subsidy delivery system. So, it remains unclear to me on what the Congress was really opposing.

But there were other school of people, who were talking about the Aadhaar act itself and sometimes the high-handed conduct of UIDAI and the seemingly unaccountable nature of UIDAI post the 2017 privacy judgment. Those issues over which people were agitating, the SC has more or less found in favor of almost all of those issues. It has held primarily that it (Aadhaar) is constitutional. It’s use as a corruption tackling mechanism on public spending remains intact and will remain the principal tool to weed out leakages in public spending. It will remain to weed out duplicates and fakes in the overall government subsidy system which has grown in the last 70 years and the verdict has also addressed the lacunae and weaknesses in the (Aadhaar) act that people and civil society were arguing about.

Let’s come to specifics. You talked about how the sloppy enrolment process has been a concern for you. What in your view on sloppy enrolment have been addressed in this context by the judgement today?

Very simple. Section 2 (B) has been modified to say that Aadhaar will be given to all residents (earlier) to saying Aadhaar will be given to all residents except illegal immigrants (now). And therefore it casts a legal obligation on the UIDAI to tighten its enrolment process and to make sure that there are no illegal immigrants in the Aadhaar database. This is not an insignificant issue. This is an issue that many people have been arguing from 2010.

Sure, but Aadhaar remit was never to enroll illegal immigrants in the first place. So, there is nothing now which stipulates that people will not pass through.

Aadhaar, in the original enrolment did not discriminate. There was no incentive legal or otherwise, for them to discriminate between a citizen and a non-citizen. Therefore, you had all the examples of Pakistani spies ending up with Aadhaar. You have a bunch of Rohingya immigrants having Aadhaar accessing public subsidy system or use that as a gateway for another identification. That issue has been explicitly stopped today when the SC says that it is now the legal remit of the UIDAI to ensure there are no illegal immigrants in the Aadhaar database. It was not a remit earlier. You are absolutely right. It is now the legal binding obligation on UIDAI to ensure that the enrolment process does not let in any illegal immigrant into the database.

Let’s come to the second issue which was an imbalance in rights between consumers on one end and UIDAI on the other. Here’s how I view it and tell me what you think. People who had a problem giving their Aadhaar cards for mobile connections or for banks, for whatever reason, today have the pleasure of saying the Supreme Court has stood by my right not to give my Aadhaar card. I think that’s a very small percentage of people in this country. What about the large percentage of people, nationals/consumers who depend on government welfare schemes? Isn’t that imbalance still existent?

There are two separate issues here. One is, on what kind of services does Aadhaar become mandatory was the question posed to the Supreme Court and the court has said very clearly that the act passed by the parliament effectively limits the mandatory use of Aadhaar for government services and subsidies. So, the Supreme Court has not gone into merits of whether the mobile phone user needs Aadhaar or not or whether bank is justified in asking Aadhaar for security purposes or not. It (Supreme Court verdict) says that the law as passed by the parliament is a law which says that this Aadhaar platform will be mandatory for all those in India who avail government services and subsidies that includes from one end of the spectrum of passports, IT filing to the other end of the spectrum which is government subsidies, LPG subsidies or any other government poverty scheme. That is, in terms of the mandatory nature of government programs and Aadhaar. It obviously means that because the act passed by the parliament does not make it mandatory for private services or private corporates, currently if a private company asks you or me for Aadhaar, then it is up to me to say that I consent, or I do not consent.

Thank you for that explanation. My question specifically is if your concern originally was the imbalance of rights and powers between users or Aadhaar and the central system, then doesn’t that imbalance still remain today if a vast majority of Indians use Aadhaar card for government services?

What’s the basic concern that a citizen has today, a general paranoia or a fear. The fear in Aadhaar act today is that if UIDAI does something wrong, wittingly or unwittingly, there is no way for a citizen or a data principal to hold UIDAI to account. If you look at the Aadhaar act prior to SC judgment, it basically says that you cannot prosecute anybody in UIDAI unless the UIDAI gives you permission. That was always the imbalance. Today the Supreme Court has said no to that. Individual citizen can now approach the court with or without UIDAI’s consent. UIDAI’s consent is not required if the citizens want to hold UIDAI accountable. That is the fundamental rebalancing in the relationship between the data principal and data fiduciary. Justice Srikrishna report says that the state’s relationship with the data principal, the data giver has to be equal. It cannot be lopsided where the state or the private entity that is seeking the data has no obligation to the data principal who is giving the data. If you look at the statement, the Supreme Court has struck down Section 33 saying that it cannot be the case and you can go to court without permission or consent of UIDAI.

Let me come to what’s going to be the major change after the judgment. That is, banks, mobile companies, schools, private firms cannot ask you for a mandatory Aadhaar card. Now my question to you as a member of the ruling BJP is that the huge push even for private sector players to start adopting Aadhaar as a form of verification etc came from this government. Does this judgement effectively show that it was an unwise decision and push by the ruling government? That they shouldn’t have done it?

No look, I think you must understand that in the digital economy, we are taking baby steps on the issue of digital governance. There are lot of people in the government and politics who are beginning to come to grips with what it entails. If you look at one of the aspects of what Justice Chandrachud says, who is the dissenting judge says and he is a well respected judge and I have great respect for him, he says that in the quest of creating a digital India, the government should not forget the rights of digital Indians. And I believe in that, whether I am celebrating the majority judgement or not. I still believe that principle holds true and that , in my opinion, is the way forward. While we fight corruption in public subsidy system, while we justify the need on national security grounds for more and more scrutiny and searching out people on internet, the progress going forward will be through a data protection law that enshrines the right of individual consumers and individual citizens even as we build the larger ecosystem of the digital economy and digital India.

Let me come to the point of those who have not been able to avail government services because of a lack of Aadhaar or because of issues with biometrics, technical issues etc. There has been a lot of reportage on starvation deaths. As an MP and politician, do you think that enough now needs to be done to address the issues; the green signal has come from the SC that it is mandatory, and you have to link it, but it should still be a concern, if even one Indian is deprived of his/her rights because of not having an Aadhaar?

Justice Sikri in the majority judgement goes on to talk a lot about this issue of exclusion. He says that the Supreme Court does not take the issue of exclusion lightly even though that there is larger public interest that justifies Aadhaar and fight against corruption; that the issue of exclusion as an issue is important whether it is 1 or 0.5%. He quotes the Attorney General saying that the government is committed and is committing that there shall be no exclusion. What that means in simple terms is the government will make it mandatory but where it detects that there is a technological related exclusion issues or people have not enrolled yet, then the government will have to adopt a road map before it makes it mandatory. When Attorney General tells SC that we will make sure that there is no exclusion, that is the voice of government saying that we will, despite having a law that says Aadhaar will be mandatory, do our best and will make sure that all efforts are made to ensure that there is no exclusion. Exclusion is the issue which has been discussed extensively by the SC and the GoI has also responded to the concerns of exclusion by saying that we will ensure this will be mandatory only when there is no exclusion.