Some Implications of Verdict on Aadhaar Act

Introduction

While the verdict of the 5-Judge Constitution Bench of Supreme Court on Union Ministry of Electronics and Information Technology (MEITY)’s Unique Identification (UID)/Aadhaar number database project being implemented by Unique Identification Authority of India (UIDAI), Aadhaar Act 2016 and indiscriminate metadata collection of Indian residents is 1448 pages long, the portion which is authored by Justice A.K. Sikri is only 567 pages long. This part of the order has been written by him but it has been signed by 45^th Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar. In a separate order, Justice Ashok Bhushan too has expressed agreement with it. The dissenting order of Justice Dr. D.Y. Chandrachud of this 5-Judge Constitution Bench assumes greater significance because it is he who authored the leading order of the 9-Judge Constitution Bench on right to privacy in this very case which had the concurrence of all the judges. A harmonious construction of the verdict of Justice Chandrachud as part of the 9-Judge Bench and his dissenting order as part of the 5-Judge Bench reveals several inconsistencies in Justice Sikri’s order; it becomes evident that latter’s order is inconsistent with the order of 9-Judge Constitution Bench. Actually, Justice Sikri’s order is inconsistent with his own observations too. It has evaded even those facts, sequence of events and scientific evidence which are on record.

Referring to UID/Aadhaar number database project, Justice Sikri observes: “Its use is spreading like wildfire, which is the result of robust and aggressive campaigning done by the Government, governmental agencies and other such bodies. . . . The Government boasts of multiple benefits of Aadhaar.” It may be recalled that the first Chairman of UIDAI used to refer to “robust and aggressive campaigning” as marketing, saying success or failure of UID/Aadhaar depends on its marketing or campaigning. The judge in question recognises that this project is a result of marketing. He carefully uses the word “boasts” with regard to government’s claims about its “multiple benefits”.

The opening statement of the Justice Sikri authored order reads: “It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one. ‘Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions.” This opening statement of the order is questionable from scientific point of view. A report “Biometric Recognition: Challenges and Opportunities” of the National Research Council, USA published on 24 September 2010 concluded that the current state of biometrics is ‘inherently fallible’. That is also one of the findings of a five-year study. This study was jointly commissioned by the CIA, the US Department of Homeland Security and the Defence Advanced Research Projects Agency. Another study titled “Experimental Evidence of a Template Aging Effect in Iris Biometrics” supported by the Central Intelligence Agency (CIA), the Biometrics Task Force and by the Technical Support Working Group under US Army contract, has demolished the widely accepted belief that iris biometric systems are not subject to a template aging effect. The study provides evidence of a template aging effect. The study infers, “We find that a template aging effect does exist. We also consider controlling for factors such as difference in pupil dilation between compared images and the presence of contact lenses, and how these affect template aging, and we use two different algorithms to test our data.” A “template aging effect” is defined as an increase in the false reject rate with increased elapsed time between the enrollment image and the verification image. This study demonstrates that assumptions which form the basis of Justice Sikri’s order are conclusively and unambiguously unscientific.

A report “Biometrics: The Difference Engine: Dubious security” published by The Economist in its 1 October 2010 issue observed: “Biometric identification can even invite violence. A motorist in Germany had a finger chopped off by thieves seeking to steal his exotic car, which used a fingerprint reader instead of a conventional door lock.” Notwithstanding similar unforeseen consequences, Justice Sikri’s faith in biometric remains unshaken. It seems that considerations other than truth have given birth to this faith. Is there a biological material in the human body that constitutes biometric data which is immortal, ageless and permanent? Besides working conditions, humidity, temperature and lighting conditions also impact the quality of biological material used for generating biometric data. The claim of uniqueness of UID/Aadhaar which Justice Sikri has accepted is based on the questionable assumption that there are parts of human body likes fingerprint, iris, voice, etc. that do not age, wither and decay with the passage of time.

Justice Sikiri’s order and the report of a Parliamentary Committee

The Forty-Second Report of Yashwant Sinha headed Parliamentary Standing Committee on Finance submitted to the Lok Sabha and Rajya Sabha on 13 December 2011 revealed that “Bharatiya – Automated Finger Print Identification System (AFSI), was launched in January 2009, being funded by the Department of Information Technology, Ministry of Communications and Information Technology, for collection of biometric information of the people of the country.” But the same is not being used by UIDAI because according to the Government, “The quality, nature and manner of collection of biometric data by other biometric projects may not be of the nature that can be used for the purpose of the Aadhaar scheme and hence it may not be possible to use the fingerprints captured under the Bhartiya–AFSI project.”

Justice Sikri‘s order refers to the Fifty-Third Report of this very Standing Committee on Finance that was presented to the Lok Sabha and Rajya Sabha on April 24, 2012 which summarised the objectives and financial implications of the UID scheme. But his order does not factor in the recommendations of this very Parliamentary Standing Committee in its Forty-Second Report which shows the existence of Bharatiya – Automated Finger Print Identification System (AFSI) whose quality, nature and manner of collection of biometric data was apparently found to be not of such required nature which can impart uniqueness. The Government reached the conclusion that biometric technology of foreign firms is better than the existing Indian one from the point of uniqueness without any comparative study.

This parliamentary report observed, “Continuance of various existing forms of identity and the requirement of furnishing ‘other documents’ for proof of address, even after issue of aadhaar number, would render the claim made by the Ministry that aadhaar number is to be used as a general proof of identity and proof of address meaningless”. It underlined that: “The full or near full coverage of marginalised sections for issuing aadhaar numbers could not be achieved mainly owing to two reasons viz. (i) the UIDAI doesn’t have the statistical data relating to them; and (ii) estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour.” The report records that “The Ministry of Home Affairs are stated to have raised serious security concern over the efficacy of introducer system, involvement of private agencies in a large scale in the scheme which may become a threat to national security; uncertainties in the UIDAI’s revenue model.”

The parliamentary report has apprehended that: “Although the scheme claims that obtaining aadhaar number is voluntary, an apprehension is found to have developed in the minds of people that in future, services / benefits including food entitlements would be denied in case they do not have aadhaar number.” Its apprehension has been found to be correct.

Parliamentary Standing Committee’s Forty-Second Report relied on the London School of Economics’ Report on UK’s Identity Project, that inter-alia states that “identity systems may create a range of new and unforeseen problems . . . the risk of failure in the current proposals is therefore magnified to the point where the scheme should be regarded as a potential danger to the public interest and to the legal rights of individuals.” It records that “the United Kingdom shelved its Identity Cards Project for a number of reasons, which included: (a) huge cost involved and possible cost overruns; (b) too complex; (c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs.” It states that: “As these findings are very much relevant and applicable to the UID scheme, they should have been seriously considered.”

These aspects of the report have been ignored by Justice Sikri. Although he refers to the introduction of ‘National Identification Authority of India Bill, 2010’ in the Rajya Sabha on December 3, 2010, he chose to gloss over the fact that this Bill was referred to the Parliamentary Standing Committee on Finance on 10 December 2010 and also the findings of this Committee on this Bill and the UID/Aadhaar project in its Forty-Second Report. This Committee comprised of 21 members from the Lok Sabha and 10 members from the Rajya Sabha. The Bill of 2010 was not a Money Bill. It was never passed by the Rajya Sabha. As a consequence of the recommendations contained in this report, this Bill was withdrawn from the Rajya Sabha on 3 March, 2016 and a new Bill, ‘Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016’ was introduced on that very day as a Money Bill to outwit the Rajya Sabha and to make the recommendations of Lok Sabha’s Parliamentary Standing Committee on Finance irrelevant. This itself is enough to conclusively establish this as a questionable legislation. However, Justice Sikri has chosen not to engage with these facts on record.

Conclusion

Citizens’ opposition to UID/aadhaar has a historical context. It is linked to more than a century old world famous ‘Satyagraha’ of Mahatma Gandhi in order to oppose the identification scheme of the government in South Africa. On 22nd August, 1906, the South African government published a draft Asiatic Law Amendment Ordinance. The Ordinance required all Indians in the Transvaal region of South Africa, eight years and above, to report to the Registrar of Asiatics and obtain, upon the submission of a complete set of fingerprints, a certificate which would then have to be produced upon demand. The move proposed stiff penalties, including deportation, for Indians who failed to comply with the terms of the Ordinance. Knowing the impact of the Ordinance and effective criminalisation of the entire community, Mahatma Gandhi then decided to challenge it. Calling the Ordinance a ‘Black Act’ he mobilised around 3,000 Indians in Johannesburg who took an oath not to submit to a degrading and discriminatory piece of legislation. Biometric aadhaar case demonstrates how ‘Those who forget history are condemned to repeat it’.

Biometric profiling is inherently dangerous because it tracks individuals based on their religious, behavioural and/or biological traits. History is replete with examples wherein such profiling has been used for genocide, holocaust and violence against all kinds of minorities.

In the face of assault on citizens’ rights and the emergence of a regime that is making legislatures and judiciary subservient to automatic identification, big data mining and artificial intelligence companies, the order of Justice Sikri seems to have undermined the Constitution and the sovereignty of the citizens who framed it. If the order is not reviewed soon by the Constitution Bench, India’s social policies is all set to be guided by biometric and genetic determinism and eugenic thinking of their beneficial owners of unaccountable and admittedly undemocratic economic institutions. It is not surprising that as of December 2018 some five petitions including one by a defence scientist have been filed praying for review of the Justice Sikri’s order. The year 2019 is likely to be the year wherein the Supreme Court’s Constitution Bench will determine whether data resource nationalism, constitutionally limited government or anonymous donors of ruling parties must prevail to safeguard citizens’ natural rights. By deciding these review petitions, the Court can pave the way for supremacy of democratic social organisations over undemocratic economic organisations.