Aadhar, Privacy and State Capacity

“Every man having been born free and master of himself, no one else may under any pretext whatever subject him without his consent. To assert that the son of a slave is born a slave is to assert that he is not born a man.”

― Jean-Jacques Rousseau, The Social Contract

Are concepts of taxation and subsidies in modern democracies in consonance with words of Jean Jacques Roseau? Are taxes collected with consent of the taxpayer? Most often, it is an obligation created by law. If the entrepreneur or trader does not comply, the person will have to pay fines or serve a jail term or both. Isn’t that unfair?

Why shouldn’t a person obtaining subsidies be subject to some rules and regulations? Why do individual rights take precedence over larger interest when resources for subsidies are obtained from the society at large?

To say that recipients of subsidies are being forced to use Aadhar in absence of their consent is same as claiming that taxes are being collected without the consent of citizens. If consent of individuals to reasonable regulations/laws is placed above the law, modern states will be plunged into anarchy.

Privacy Conundrum

In the past few months critics have highlighted the lack of consent of citizens for sharing Aadhar card details. On the other hand, the reality on the ground is not so. There is widespread support for Aadhar in public. Instead of providing numerous documents and signatures , the public prefers to submit a single standardised document , i.e. Aadhar.

The media and critics speak of violation of ‘right to privacy’, something that does not find place in the constitution. From the legal point of view, whether Aadhar Bill is a money bill or not is the only legal question that remains to be answered.

Critics compare social security number (SSN) of USA to Aadhar, pointing out the fact that USA does not collect biometrics data for SSN. What they miss is that USA was monitoring personal data on social media! So, privacy of individuals has not been invaded in India as it has been done in the oldest democracy of the world. Critics have conjured wild theories similar to that of the ‘Big Brother’ described in Orwell’s 1984. In reality the law allows usage of Aadhar data only on two grounds

1. In the interest of national security, a Joint Secretary in the central government may issue a direction for revealing,

(i) Aadhaar number, (ii) biometric information (iris scan, finger print and other biological attributes specified by regulations), (iii) demographic information, and (iv) photograph. Such a decision will be reviewed by an Oversight Committee (comprising Cabinet Secretary, Secretaries of Legal Affairs and Electronics and Information Technology) and will be valid for six months.

2. On the order of a court,

(i) an individual’s Aadhaar number, (ii) photograph, and (iii) demographic information, may be revealed.

There are safeguards in the Aadhar law in order to prevent misuse. Additional safeguards can always be added. The solution is to make the data safety more robust. Scrapping Aadhar is not the solution.

The debate on Aadhar integration with PAN card, in my opinion is unnecessary. If you think hard, connecting Aadhar and PAN will not drastically increase compliance or tax collections. It won’t result in tax terrorism either. It will eliminate fake PAN cards which are used for evading taxes. This is a tacit admission of the government regarding loopholes in PAN card issuing process. Breaking heads on this matter is unnecessary as it is a case of double verification and inefficiency and not a violation of privacy.

Aadhar as a tool to strengthen state capacity

If American political traditions have continued to emphasize the importance of limiting the role of the state while western Europe has adopted the model of the welfare state and the former socialist countries the model of a socially transforming state, India has adopted the model of a state which exists for its own sake. It is a good in itself. It exists to provide everything that the Indians need and require : sovereignty , unity , welfare , jobs for all, social justice. It is the duty of the state and the holders of its offices, moreover to provide these goods and services directly to the people , irrespective of any ideology or any notion of a broad common good. It is there to serve anybody’s interests, not just an abstract ‘public interest’

~ Paul R Brass in “Politics of India Since Independence”

Citizens of India are demanding more services and goods from the state irrespective of their identity. In addition to this, politicians are resorting to populism to gain votes. In the light of twin challenges to the country’s economy, the government needs an efficient identification and delivery mechanism for delivery of its schemes. The nation can’t suffer further drain of resources to middle men.

Economic Survey (2017) says the following about weak state capacity:

“A second distinctive feature of the Indian economic model is the weakness of state capacity, especially in delivering essential services such as health and education (Mangla 2015; Deaton 2013). Of course, nearly all emerging markets started off with weak state capacity at independence. But as their economies developed and prospered, state capacity improved, often at an even faster rate than the overall economy. In India, by contrast, this process has not occurred. Fukuyama (2013) argues that the Indian state has low capacity, with high levels of corruption, clientelism, rules and red tape.”

The consequences of poor targeting with a burgeoning population are far more disastrous than the so called “invasion of privacy” by the state. The social cost of corruption in disbursal of welfare schemes , especially PDS are too high. At the cost of addressing complicated and winding maze of words in Part III of the constitution, the nation might sacrifice the opportunity to implement one of the key directive principles mentioned in Article 38 of the constitution.

State to secure a social order for the promotion of welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations

If the state is opting for methods to direct its subsidies to deserving individuals in order to minimise inequalities, we must find ways to make it robust, rather than shoot it down. Aadhar has proved to be a fine tool to circumvent all middle men and reach out to the common man directly through his bank account.

Benefits accruing from effective delivery of welfare schemes are grossly overlooked. Critics of Aadhar underplay the main aim of scheme, i.e. to fix leakages in subsidies. We must not forget Rajiv Gandhi’s famous remark wherein he conceded that 16p reaches eligible beneficiaries for every rupee spent by the government. The scope for improving the state’s efficiency is huge.

Adherence to constitution in a bookish way at the cost of avoiding larger interest of society is stupidity of the highest order. I challenge these critics, especially lawyers to catch a person in the bus stop or railway platform and ask him/her to name five fundamental rights listed in the constitution. They might find few cases where they get right answers.

Critics of Aadhar must realise that the common man needs results, not rights romanticised in a quagmire of phrases. The attitude of constitutional lawyers fighting Aadhar is an similar to that of the famous Indian bureaucracy. All schemes formulated by bureaucrats look fabulous on paper, but in reality on the ground remains grim. Similarly, justice is subordinated to complex legalese which benefits lawyers rather than the common man.

Loss of faith in the state has already led to Maoist insurgency in several parts of India. It may spread to new areas if the government machinery remains apathetic to plight of the needy. In the end, the public will end up electing demagogues with bad policies who present themselves as messiahs of the poor. Competitive populism will become the order of the day. It already has, to a large extent. To stop an impending disaster, the state will have to acquire competence and upgrade its capacity. To achieve this , Aadhar is a splendid tool. I hope that the judiciary does not block this golden opportunity.

Owning a fine horse is only a part of the journey. The rider’s skill will decide whether the destination will be reached or not.

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