Nilekani has been too clever by half in pushing Aadhaar; now, he must face flak

Nandan Nilekani, father of the Aadhaar unique biometric identity project, has tried to put on a brave face over the Supreme Court’s decision last Monday that effectively puts a question-mark over its future. The court said that Aadhaar’s use cannot be made mandatory for anyone seeking to avail oneself of subsidy schemes, and also struck down a Bombay High Court decision that called on the Unique Identification Authority of India (UIDAI) to share biometric data for criminal investigations.

Nilekani, who till recently was tomtomming his accomplishment of giving Aadhaar cards to 600 million residents (not necessarily Indian citizens), even took credit for the court decision. Business Standard quoting him as saying: “The ruling from the Supreme Court…was in response to a motion filed by the UIDAI itself, since the agency didn’t want to share resident data for a criminal investigation. The UIDAI has always valued the privacy of resident data… and the agency went to the court to ensure that people’s privacy is protected.”

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However, what Nilekani did not talk about was the court’s observation that its orders making Aadhaar non-mandatory, issued last September, were being flouted.

Justice BS Chauhan, who along with Justice J Chelameswar constituted the bench hearing the public interest litigation against Aadhaar, told the Solicitor-General in court: “I have received a lot of letters which say that Aadhaar card is mandatory despite court orders. We had already passed orders saying no one should suffer for not having Aadhaar card. How can you insist on Aadhaar card? If there are any instructions that Aadhaar is mandatory, it should be withdrawn immediately.”

There are two issues emanating from Nilekani’s claims and pretence that Aadhaar was voluntary.

First, since Nilekani resigned as UIDAI chief barely two weeks ago to contest the Bangalore (South) Lok Sabha elections on a Congress ticket, he cannot claim ignorance of the Supreme Court’s orders of September 2013 making Aadhaar non-mandatory. As UIDAI chief he should have specifically told Aadhaar applicants that this was not needed, and if they wanted a card, they did so voluntarily. UIDAI did not widely publicise this.

Second, even on the point of privacy, surely he would not have been unaware of the potential for abuse when so much biometric data is collected by private parties without any law to safeguard misuse. And yet, he pushed ahead without any law to prevent this abuse. He let us down on privacy.

What this proves is that Nilekani used his clout with the UPA government to go full steam ahead with his pet scheme even though he knew safeguards were not in place. He would also have known that it could be misused. From a public spirited leader, this level of nonchalance about privacy is not expected. In fact, one can suspect that he used a weak government to push through a deliberate plan to ask people to part with their biometrics while giving people the misleading impression that it had the full sanction of the law.

We now know that Aadhaar not only did not have the backing of a law, but its use for government transactions was being extended covertly after September 2013 even after the court specifically said it was not compulsory.

Nilekani says that Aadhaar was never mandatory, but can he feign ignorance about how it was really being pushed on the ground by LPG dealers and banks? LPG dealers were pushing Aadhaar long after the Supreme Court order to deny people subsidised cylinders. Banks were pushing Aadhaar in order to get over tough KYC (know your customer) norms. As Aadhaar KYC norms are far easier to comply with, banks could then wash their hands off KYC compliance by accepting Aadhaar as the validator. Many banks have been holding Aadhaar camps to persuade account holders to seed their accounts with the number to receive government subsidies. Did banks not know this was not needed?

Voluntary compliance with Aadhaar when the applicant is not specifically told about its non-mandatory nature is no different from deliberately misleading the public.

When Sebi clears any share of mutual funds for sale to the general public, these issues have to specifically highlight the risk factors. But here we are collecting biometric data - something that is the private property of the individual except where the law provides for its collection by the state - and the public is not warned about it.

Nilekani has now protested to the Election Commission against his political opponent in Bangalore (South) Ananth Kumar for making Aadhaar his target. But he has only himself to blame. If he talks of Aadhaar as his success, its failure to pass muster with the Supreme Court is his failure too.

Nilekani has probably been too clever by half in trying to push a good scheme in the wrong way - without legislative backing, and with little protection for the hapless poor who think this is the route to subsidy benefits. A CobraPost sting showed that Aadhaar can easily be purchased for a fee - compromising the whole process.The use of private parties for collecting biometris has often resulted in Aadhaar numbers being issues to dogs and even trees in the past.

He should thus be ready to face the flak.

Is there any way to rescue Aadhaar? Yes.

First, it needs to be suspended and the data sealed till a legislation is passed.

Second, the law should specify that it cannot be used for any fishing expedition by the investigation agencies or the government without the permission of the resident.

Third, Aadhaar can be restricted only to the poor. It must be used to exclude the rich so that subsidies can be better targeted.

Aadhaar has to be re thought through, not junked. To read why, read here.