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UIDAI CEO: We’ll ask SC to test Aadhaar Act on standard of privacy as a fundamental right

Rajesh Jain (Founder, Netcore) and Ajay Bhushan Pandey (CEO UIDAI)

“I would urge all of you, please read the Aadhaar act and the regulations,” UIDAI CEO Ajay Bhushan Pandey said at the India Digital Summit last week, adding “What the underlying theme is that we have presumed that privacy is…whether privacy is a fundamental right or not is a question which will be answered by the Supreme Court, finally.” Pandey was responding to a question from MediaNama, which pointed out the Union of India’s statement in the Supreme Court that ‘Violation of privacy doesn’t mean anything because privacy is not a guaranteed right’, and asked about privacy protections in the law to prevent mass surveillance of citizens.

Pandey added that “We’ve presumed that the privacy is almost like a fundamental right. And if a fundamental right has to be protected, what protection measures should be there? So, whenever the hearing takes place, we are going to take this stand in the Supreme Court, saying that whether the privacy is a fundamental right or not doesn’t concern only Aadhaar, it concerns many other aspects. But so far as Aadhaar is concerned, please test the Aadhaar act on that standard, saying that presume that Privacy is a fundamental right, and whether whatever Aadhaar is doing meets that fundamental right criteria or not. And we’re very sure.”

“Now the Aadhaar act has been passed, it is almost one year, and the way we’re doing it, all other apprehensions that government will become big brother, government will aggregate big data and all kinds of things, data will be misused, private companies will misuse it, all these things, you know all these things today, you know I wouldn’t say there are no complaints, but genuinely there are no specific instances”, and “Nor have such complaints have been brought to the notice of the court.”

Please note that Renuka Sane (visiting fellow at the IDFC Institute, Mumbai) and Vrinda Bhandari (Advocate at the Delhi High Court) had detailed out earlier issues related to privacy in the Aadhaar Act, saying that the Aadhaar Act and the IT Act are “important failures in enshrining privacy.” Read their detailed analysis here. Importantly, they also point out that there is a possibility of a conflict of Internet “since it may be in UIDAI’s interest to cover up breaches of privacy. Without the UIDAI’s proactive action, an individual Aadhaar number holder is left without remedy.”

The other question we asked Pandey was about the failure rate, and “what recourse do people who have been denied their benefits, have? This concern about fingerprints was also raised by the parliamentary standing committee, under Yashwant Sinha

To this, Pandey said that “Ideally there should be no failure rate. But what is happening is that we’re seeing a failure rate of 92-98%…I mean success rate. What is that 8% or 2%? That is somebody who could not get authenticated.”

“Sometimes people are very innovative,” he added. “They try to see if their fingerprint works or not (for someone elses Aadhaar number). I’m not saying that that is the only reason. Sometimes, you know, some of the fingerprints are worn out. In that case, we have the facility that you can authenticate any of the fingerprints. 10 fingerprints or the iris. Using this you can reach almost near 100%. The telecom companies that have started given SIMs (SIM cards for mobile numbers) using this, their success rate is 98%. Whereas, the business correspondents, who go to the villages and actually hand out cash, have a success rate of 92%. They have to improve that.”

Frankly, even 2% and 8% failure rates are significantly large numbers when you consider a population of 1.2 billion on Aadhaar: it is real people who are getting impacted, and someone denied their rights – rations are critical for many – shouldn’t be seen as just a percentage point. That is one of the problems with the proponents of Aadhaar (and digital payments): a lack of empathy, and thinking of technology as the be-all and end-all of India’s problems. Do read: Technology has never been this politial in India

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