Believe it or not but it is true. From October 7, 2015 onwards if a person wants to open an account in a bank using Aadhaar card, he cannot do so. If, he wants to buy an insurance policy using this card as proof of identity, he can’t. If, he wants to draw pension on its strength, he can’t. A recent order of the apex court has brought all these and a host of other very basic activities to a grinding halt. Let us look at the facts.
Aadhaar card is a bio-metric identification card issued by Unique Identification Authority of India [UIDAI]. So far, over 900 millions cards have been issued which is many times more than any other proof of identity viz., I-card [issued by Election Commission], passport, PAN [permanent account number], driving license etc. Given its massive coverage and most comprehensive data it encapsulates about a person, Aadhaar is the natural choice for use by public authorities for delivering services and implementation of a host welfare schemes including disbursement of subsidy.
Its utility has already been demonstrated. Under Prime Minister Jan Dhan Yojna [PMJDY] – Modi – government’s flagship financial inclusion scheme – a record around 180 million bank accounts have been opened [40% of these seeded with Aaadhaar]. LPG [liquefied petroleum gas] subsidy is now being directly transferred to millions of beneficiaries curbing pilferage thereby resulting in savings of about Rs 12,500 crores annually. Without Aadhaar which enabled hassle free authentication of persons, none of these schemes would have met with success.
Under Mahatma Gandhi National Rural Employment Guarantee Act [MGNREGA], a flagship employment guarantee scheme introduced by erstwhile UPA–regime, direct payments of wages are now being made to about 30 million workers [out of a total of 90 million beneficiaries] in to their bank account seeded with Aadhaar. This has cut red tape and reined in leakage of funds earlier happening on an unprecedented scale.
Securities and Exchange Board of India [SEBI] finds the use of Aadhaar card very useful to check the veracity of investors in stock market and is keen to use it as a potent instrument to combat laundering of black money. Likewise, other statutory authorities such as Reserve Bank of India [RBI], Insurance Regulatory and Development Authority [IRDAI], Pension Fund Regulatory & Development Authority [PFRDA] etc can use it for curbing dubious activities in their respective spheres.
It is clear beyond doubt that the government is garnering huge benefits from use of Aadhaar which will multiply manifold as it brings more schemes like fertilizer, food and kerosene subsidy under direct benefit transfer [DBT] besides expanding coverage under schemes already under DBT. Yet, it is ironical that UIDAI which issues Aadhaar card does not enjoy legislative backing. This led certain groups to file writ petition in the Supreme Court [SC] challenging its constitutional validity.
In its interim order dated August 11, 2015, a three member bench of the SC had permitted use of Aadhaar card only for delivering subsidy on food under public distribution system [PDS] and LPG on a ‘voluntary’ basis. For all other welfare schemes such as payments under MGNREGA, pension, scholarship, provident fund etc, it disallowed Aadhaar’s use even on voluntary basis.
The reason given by the apex court was that it would infringe on the citizen’s right to privacy. What is the connection between government’s intent to deliver a welfare benefit to a person and his right to privacy? How does an act of giving financial assistance infringe on his privacy? Why should a doubt arise that public authorities would use bio-metric information on Aadhaar for mounting surveillance on him?
Prima facie, one sees no link between the two. Even if one were to get a sense that public authorities will mount a vigil on a person’s private life, they will do it any way once they have the information in their records [obtained whether through Aadhaar or any other mode]. They don’t have to ride piggy back on a welfare scheme to justify their action. Then, why did the judges think differently?
The trigger was a statement made by Attorney General [AG], Mukul Rohatgi while arguing his case before the court. Citing a judgment of a full bench of SC in 50s, he opined that “right to privacy is not a fundamental right”. But, main point he was trying to drive home was that when it comes to larger issues of welfare and extending financial support to millions of poor in a manner that funds are properly utilized [without any pilferage], privacy of an individual normally should take a back seat.
Ironically, the judges glossed over the big picture; instead they picked up AG’s ‘right to privacy’ point and presumed that the government would use the information for infringing on an individual’s private life [which he never meant]. The bench not only to put an embargo on use of Aadhaar [sans its use for disbursing subsidy on food and LPG] – not even on voluntary basis – but also, referred the matter to a full Constitution bench.
Meanwhile, central government and a host of its agencies viz UIDAI, RBI, SEBI, IRDAI, PFRDA etc besides a number of state governments had approached the SC pleading that they be allowed to use the Aadhaar card for their respective services. In its affidavit, UIDAI had even listed the huge sums government had saved via eliminating bogus persons under MGNREGA, PDS, LPG etc; hence dire need to permit use of Aadhaar.
Yet, the judges were unfazed. In their order dated October 7, 2015, the bench merely reiterated its order of August 11, 2015. It referred all petitions to the full Constitution bench and opined that till the larger question of whether the information given by citizens under Aadhaar violates their “right to privacy” is decided, the status quo will continue.
Undoubtedly, SC is the ultimate arbiter on constitutional provisions. It is also true that in its eyes, welfare measures cannot override the finer legal points. But, in the present case, it needs to ponder whether in a scenario where a predominant proportion of the population lives in acute poverty and depend mainly on state support for their living, right to privacy can be so overpowering that it can put even their survival at stake? This is precisely what its order will do by rendering Aadhaar card dysfunctional.
Can a mere suspicion that government could use information garnered under Aadhaar to encroach on a person privacy be pushed to a point of blocking his access to resources needed for his very survival? Even so, given a choice between having two meals a day and other basics viz., health, education, drinking water, electricity etc on one hand and maintaining privacy on the other, a poor person is bound to choose the former.
The ball is now in the court of full Constitution bench. Whether or not right to privacy is a fundamental right? This question has been on the radar of SC for over six decades and there have been conflicting pronouncements by its different benches. In this backdrop, it will be highly inappropriate and imprudent to hold use of Aadhaar card hostage to this legal wrangling even for a few months as the associated cost in terms of continuing pilferage and brake on inclusive development will be irreparable.
It is therefore high time that SC listens to the voice of 125 crores people of this country. It should delink the privacy issue and change its order to allow use of Aadhaar in all welfare schemes and delivery of public services on voluntary basis for now. However, it can take an affidavit from the government that it shall maintain strict confidentiality of the information.