Fighting For The Basis Of Aadhaar

Well, it’s halftime in the Aadhaar challenge proceedings, before the Constitution bench led by the Chief Justice of India. Time to indulge in a bit of legal stock taking to hazard where the challenge was going.

The daily proceedings are being reported briefly, and we even have some advocates on record, tweeting the submissions in real time – on the exchanges taking place between the counsel and the bench. Senior advocate Shyam Divan is leading the charge and has argued that Aadhaar was nothing but a blatant invasion into the ‘right of citizens to be left alone’ – the right to privacy. The right to privacy is now a fundamental right after it was held so in the K S Puttasamy judgment by the nine-judge bench which heard the reference. Shyam Divan has borrowed from a viral speech of Hebrew University History professor Yuval Noah Harari who is now famous for his epochal works Homo Sapiens and Homo Deus. Harari, in his speech at the World Economic Forum, Davos, recently talked about Big Data being the big daddy of our times and how the technological revolution from now on has a nightmarish prognosis to lead to ‘Digital Dictatorship’.

Others have joined in too, saying Aadhaar was the Big Brother of the Orwellian construct and that India would face a surveillance raj and citizen profiling could become routine. They have further submitted that Aadhaar today is a different beast, from what it was conceived as and for – to help the cause of those below the poverty line, having certainty in the receipt of subsidy benefits and public distribution system supplies, without leakage. And that the technology platform with a biometric basis was a wobbly, incapable of ensuring a hack-free system. That is the crux of their submissions which the central government and the Unique Identification Authority of India (UIDAI) would now be required to respond to.

But, even before the Attorney General has begun his submissions, the reported interventions from the bench make for interesting reading, as a veritable ‘push back’ at the petitioners’ anxieties. All that the central government may need to do is to build on this ‘push back’ from the Bench.

More than one member of the five judges’ bench have queried thus – when citizens have shared so much data with private players, what is the grievance in sharing it with the state for receipt of services? If Facebook, Twitter, Instagram and WhatsApp are already in possession of all such data which is readily shareable for commercial causes – do the petitioners have a cause to pursue at all? “If the world over Big Data is now the ‘land’ of our century and technological advancement was exponential, a central identity for citizens could become a huge leverage for economic benefits, can we deny ourselves the benefits? If the mobile and laptop age is upon us with its tentacles can we be expected to hark back to the stone age? And a clincher pushback – “We are all Indians, after all. Why should we not have a single common identity and in the face of a committee led by a respected retired judge of this court (Justice B N Srikrishna) entrusted with the task of crafting a comprehensive data protection law, would the petitioners be justified in portraying a scary scenario?”

Well, the Aadhaar debate has been on since its conception (2009). There was no statute in place when octogenarian Justice K S Puttasamy challenged its place, even for receipt of supplies under the public distribution system or for any other linkage either. Parliament then enacted the Aadhaar act, and the issue arose whether ‘right to privacy’ was a fundamental right – and the nine-judge bench solved the riddle in the affirmative.

In the meanwhile, the central government saw huge possibilities to tap into Aadhaar to link it to bank accounts, PAN cards, mobile phones and the list is growing. Author of The World is Flat (on the Internet revolution based on Nandan Nilekani’s profound quote) Thomas Friedman has prophesied that India is sitting on a huge gold mine of data to economically tap into it, to rival China on the world stage. Friedman's recent work, Thanks for Being Late, looks at the interplay between market, mother nature and technological revolutions, in the age of acceleration.

One is reminded of the famous Nani Palkhivala quote, “ The cultural heritage of India is so precious that India is like a donkey trudging along with a huge sack of precious gems unaware of its worth’. And here we have the spectacle of ‘liberals’, warning us of doomsday in the name of right-to-privacy when they themselves have mortgaged their private data to many a private player – iPhones, Ipads, social media platforms et al.

The only answer they offer is that their ‘sacrifice of privacy’ to private players wasn’t by choice, whereas the state was compelling them to do so. The FAQs put out by the central government/UIDAI prior to the commencement of the Aadhaar challenge proceedings made it clear that no beneficiary will be denied their due for the absence of Aadhaar and the leakage stories were being taken seriously and attended to by tweaking with even a facial recognition tool. The Data Protection Committee will go into the nitty-gritty and have the best of firewalls to ensure that the interest of citizens is not bartered away.

While the Congress party was enthusiastic to pursue the Aadhaar during the United Progressive Alliance (UPA) regime and the father of Aadhaar, Nandan Nilekani, was even a Congress candidate from Bengaluru in the Lok Sabha elections of 2014; they are now keen to question the wisdom of the Modi administration for political reasons. So much so that even Nandan Nilekani has not fought shy of saying that there was an ‘orchestrated campaign to malign Aadhaar’ and that Aadhaar was here to stay.

The prognosis from the Constitution bench proceedings is good news for the nation, especially for rural India, where it matters even more.

As a practitioner, this columnist would make a bold prediction. Just as the right-to-privacy as a fundamental right before the nine-judge bench was easy pickings, this one is no nuanced secret with surprises in store.

Yes. The Constitution bench is most likely to uphold the Aadhaar legislation with a caveat that its ‘ mandatory' nature be curated, and the central government may be directed to come up with a comprehensive data protection law within a time-frame. Any takers?