September 15, 2015 -
Nandan Nilekani, the former chairman of the Unique Identification Authority of India (UIDAI), today argued in an opinion piece published in the Indian Express that the recent Supreme Court decision limiting Aadhaar use should be appealed.
BiometricUpdate.com reported in August that the court placed a highly restrictive cease order on the national Indian government concerning its use of Aadhaar data. Under the new court order, the use of Aadhaar is restricted to the distribution of liquid propane gas, kerosene and food grains. India’s Supreme Court also ordered that any additional data collected under the auspices of the Aadhaar program not be used for any other purpose, except for criminal investigations, when specifically directed by the court.
Nilekani argues that the cease order completely curtails the provision of social services. According to the former UIDAI chairman: “Aadhaar is critical plumbing for a welfare state” and as a result, “the verdict must be challenged on the grounds of individual choice and the freedom of the executive to frame policy.”
According to Nilekani: “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.”
Nilekani also notes that the executive branch of India’s national government must have the capacity to determine its social welfare priorities. He asks: “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?”
Nilekani writes: “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?”
In the wake of India’s Supreme Court decision on Aadhaar, BiometricUpdate.com reported that many social programs that relied upon the biometric database for citizen authentication are in jeopardy. The biometric program will be extremely limited in scope until the “right to privacy” reference question is determined by India’s Supreme Court.
In the current reference question before the court, petitioners are seeking to protect the constitutional right to privacy, while the government is seeking to declare that such a right does not formally exist. If the court ultimately determines that the right does not exist, then the national government will be able to continue to proceed with using Aadhaar for additional welfare and security applications. If the court determines that the right to privacy does exist, then government will have to seek alternative means to implement it new proposed social security and national security programs.