Biometric aadhaar unconstitutional?
There are two main aspects to the aadhaar project. One, it is a numbering scheme; that is, the scheme is to be give numbers to every individual by which they can be identified. That number is to be put on every data base, which will make it easy to profile people – including relationships, education, work record, bank accounts, travel, consumption patterns, association with any organisation or agency, medical records and so on. It is not that the UIDAI will keep this information with it; it is that the aadhaar number embedded in various data bases will make it simple to pull information together.
Two, it is an experiment with biometrics with the whole country as a laboratory. We know this because, in January-February 2010, the UIDAI was looking to appoint a biometrics consultant, they said in the notice of invitation that whether biometrics will work or not is dependent on the nature of the population and on environmental conditions. And they admitted that: “there is a lack of a sound study that documents the accuracy achievable on Indian demographics (i.e., larger percentage of rural population) and in Indian environmental conditions (i.e., extremely hot and humid climates and facilities without air-conditioning.” Then they went on to say that they “could not find any credible study assessing the achievable accuracy in any of the developing countries. UIDAI has performed some preliminary assessment of quality of fingerprint data from Indian rural demographics and environments and the results are encouraging. The “quality” assessment of fingerprint data is not sufficient to fully understand the achievable de-duplication accuracy.” It is with this complete lack of data that the project was launched. It should therefore be no surprise to us that, seven years after the project was started and close to six years after they starting collecting the biometrics from people, the UIDAI now says on its website that they have established, within the UIDAI, a UBCC, that is, UIDAI Biometrics Centre of Competence, which is to do 'research’ on biometrics. Why now? Because they have discovered that the “nature and diversity of the working population makes biometrics a challenge”. So, now they are going to do research to make biometrics work as identity. It is useful to remember that fingerprints change, fingers get chapped and cut and damaged. Nobody, not even the UIDAI, denies this. Iris too changes, as possibly any part of the human body will. Instead of accepting, like the US and the UK systems did, that biometrics cannot fix identity over a large swathe of population and across time, the UIDAI is suggesting that people should just enrol and re-enrol, time and time again.
What does this mean for people?
One, its put a whole population on a data base, while making it easy to profile them, making them vulnerable to any agency or country which is able to get access to the data base. This is not hypothetical. Between July and September 2015, the Office of Personnel Management in the US establishment in Washington admitted that 5.6 million people’s fingerprints had been stolen by hacking. The Washington Post reported: “Breaches involving biometric data like fingerprints are particularly concerning to privacy experts because of their permanence: Unlike passwords and even Social Security numbers, fingerprints cannot be changed. So those affected by this breach may find themselves grappling with the fallout for years.” They have since had to put together an 'interagency working group’ including law enforcement and intelligence officials to “review ways that the fingerprint data could be abused and try to develop ways to prevent that from happening”. And of course we know about Edward Snowden’s revelations, which, among other things, established how probable it is that an insider, or an employee of an agency to whom work is outsourced, can filch, tamper with, and walk away with data from these data bases. This then becomes personal security, and a national security, issue.
Two, in this project, people do not have an identity. That is, it is not like the voter ID or driving licence, where we can show a photo ID and say that this who we are. When we use such an ID, no record need be maintained of what we are showing; it can only be a process of verification. In the aadhaar system, technology will have to say who we are. So, our fingerprint must be sent to a central system which will get checked against the data base, and if the system recognises us, we are who we say we are. If, on the other hand, it fails to recognise us, our identity will become suspect, or even rejected. The strong possibility that manual workers, beedi workers, plantation workers, old people, those working with chemicals may, for instance, get excluded means not just that they will not be recognised by the system; but that they will be denied what they are entitled to otherwise get. And they are the people most needing state assistance.
Three, biometrics, unlike passwords or pin numbers, cannot be replaced. What is a person supposed to do if their biometrics get compromised? We know now that fingerprints, for instance, can be faked, that they can be 'lost’ because someone 'stole’ them, that they can become unusable because of a range of reasons, including that their work wears out their fingerprints or that working in the sun affects iris recognition. This is a risk that is being foisted on the people, and no one else is willing to accept liability for the harm and loss that this may cause.
Four, in making biometrics compulsory for the poor, the poor are being told that they do not have any interest in privacy, and that they should only care about the money they may get from the government or the food that may be provided. This reduction of citizenship of the poor person to a rightless welfare recipient is itself unconstitutional, and jusgments of the Supreme Court including in the famous Olga Tellis case (1985) have said that there can be no 'waiver’ of fundamental rights – that is, we cannot give up our fundamental rights even if we are so minded; it is ours, and that is it.
This project has made it necessary to remind the governments that the Constitution is not about the power of the state over the people. It is about the limits of state power.
– Dr Usha Ramanathan works on the jurisprudence of law, poverty and rights. She writes and speaks on issues that include the Bhopal gas disaster, mass displacement, civil liberties, criminal law and the environment.
Statement of Dr Usha Ramanathan on Biometric UID/Aadhaar
