Citizens don't have an absolute right over their bodies: Attorney General

A summary of the arguments for and against Aadhaar in income-tax returns filing.

In the courtroom drama that has ensued following the two petitions filed by thought leaders about making Aadhaar (which holds one's biometric data such as fingerprints and iris scans) mandatory for income tax filing–Attorney General Mukul Rohatgi argued that citizens cannot claim absolute right over their bodies, and cannot refuse to provide digital samples of their body parts when the state calls upon it.

Here is a history of the proceedings to bring you up to speed:

Following the amendment to the Income Tax Act—that is, Section 139 AA which mandatorily requires one's Aadhaar details in order to file ITR (income tax returns) and apply for PAN number, starting July 1–two writ petitions have surfaced, one by CPI leader Binoy Viswam (represented by Aravind Datar) and another by retired Maj. Gen. Sudhir Vombatkere and Dalit activist Bezwada Wilson (represented by Shyam Divan). Advocate Shyam Divan made a strong case last

Advocate Shyam Divan made a strong case last week while speaking for the anti-Aadhaar lobby–bringing up the intrusive nature of Aadhaar which is a direct impediment of a citizen's right to bodily integrity.

The petitions also argue that this amendment is at loggerheads with the Aadhaar Act, which, when instated, had clearly mentioned that procuring an Aadhaar card is optional. It was voluntary and meant for citizens who wished to avail the benefits of certain social schemes linked with Aadhaar. However, the Attorney General pointed out that the latest version of the Act, and its Sections 7 and 54, in fact, make it compulsory for citizens to enroll into the Aadhaar scheme, and procure a UID, that is, Unique Identification number.

A TOI article has captured Rohatgi's full argument, made in front of a bench comprising Justices AK Sikri and Ashok Bhushan. "There is no absolute right over the body. If such a right existed then committing suicide would have been permitted and people would have been allowed to do whatever they wanted with their bodies. The right not to have bodily intrusion is not absolute, and the life of a person can also be taken away by following a due procedure of law. People cannot commit suicide and take drugs," he said, also adding that breathalyzer tests, and taking the blood samples and fingerprints of an accused in a case also did not require the citizen's consent.

The court went on to call this analogy incorrect, because his examples were all cases of criminal offences, whereas this was a separate arena–taxation. To that, Rohatgi responded stating that the UID number which is anyways compulsory now, could be linked to the PAN cards and ITR proceedings in order to prevent tax fraud and track black money in the system.

He insisted that PAN is not an airtight mechanism, but Aadhaar was a pathbreaking technology. He also assured the bench that this crucial information was not being gathered to keep tabs on the citizen's movements. "It is not meant to track anyone. The purpose is not to create Uncle Sam who will keep snooping. It is meant to make India a tax-compliant society and ensure that the benefits of welfare schemes reach the poor," he said, adding that people cannot claim to have the right to be invisible, by refusing to get registered under a comprehensive identification mechanism like Aadhaar.

"Even if you want to be forgotten, the state is not willing to forget you," he said.

The arguments of the anti-Aadhaar lobby

Shyam Divan, in a hearing about the petition that was later adjourned, argued that the Aadhaar project "alters the relationship between the State and the individual. It is an issue of civil liberty."

"How can you engraft a provision into the Income Tax Act making it mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary? My fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life. As long as my body is concerned, the State cannot expropriate it without consent, and for a limited purpose. Will we be put on an electronic leash for our entire lifetimes? If from birth onwards, the State knows everything about you, will the relationship between State and individual remain the same? Forcing a person for biometric detail is an intrusion into his body. Nowhere in the world does any state have a system which tracks you 24/7.... This is the first time that in any open society this kind of tagging is being done.... The entire Aadhaar Act is voluntary. It creates a right in favour of citizens. If you choose not to apply, may not get something."

Another article pointed out that it is unclear who will get access to all the data collected, and even illustrated the repercussions of having your iris–easily visible on your body–linked to information about your name, date of birth, address, your police verification, and, your Aadhaar number. In a hypothetical scenario, perhaps a mobile app could scan a passerby's retina and provide you semi-confidential information about them–for the Aadhaar Act does not limit how Aadhaar could be harnessed by third parties, through a process called ‘seeding’ to collect information about your movements and buying patterns.

And wherever the Aadhaar is used for authentication or transactions, a record is created of the exchange in the Unique Identification Authority of India’s (UIDAI) databases–thus leaving the possibility of close surveillance and profiling wide open, given the current state of the Act.

An app, OnGrid, that calls itself the 'Trust Platform of India,' describes its offerings as "In India, where data and documents can easily be faked or duplicated, OnGrid provides digital protection in the form of a block-chain of verified information made available by an individual via OTP consent." The app essentially provides verification and background checks to employers, based on a candidate's Aadhaar number. While this technology is being harnessed for a limited purpose at the moment, its use cases and by extension–misuse cases, can be infinite.

The recent security breaches on government websites are an example of that. The worst case scenario that may have been imagined by the government when it was decided to link sensitive personal information about one's demographic and banking activity to one's UID came true, as an online leak of over 13 crore Aadhaar numbers through four government websites was confirmed, thus putting confidential data like your bank account details, address, etc. in the public domain. The four faulty portals in question here are National Social Assistance Programme, National Rural Employment Guarantee Scheme, Chandranna Bima Scheme, and Daily Online Payment Reports of NREGA.

The Indian Express even carried a report with a letter written by the Ministry of Electronics and Information Technology, confirming the online leak of the data. "A citizen's Aadhaar number and demographic information and other sensitive personal data such as bank account details etc. collected by various ministries/departments... has been reportedly published online and is accessible through an easy online search,” Archana Dureja, a scientist in the Ministry of Electronics and Information Technology, wrote on March 25.

Besides, the Aadhaar is not as foolproof as it is touted to be. A recent bust brought forth at least 45,000 phantom Aadhaar numbers  linked with bogus ration cards at over 300 fair price shops in Bengaluru alone. There were also some cases wherein one single Aadhaar card number was linked with multiple fake cards, thus hinting at foul play in the delivery of food grains, fertilisers, kerosene and LPG subsidies to target beneficiaries, which was to be carried out with minimum leakage using the Aadhaar technology.

Recently, in March, the government has taken the route of calling the Aadhaar Bill (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) 2016–after which collection, preservation, and use of biometric data will enjoy statutory backing–a "money Bill," in order to bypass the Rajya Sabha which does not support it. Keeping it beyond the reach of parliamentary scrutiny by terming it a money matter has, in fact, further ruffled the feathers of the anti-Aadhaar lobby, who insist that this debate is not about money, but, about the fundamental issue of right to privacy. This remains to be their main contention–placing so much information and power in the hands of the state.