Source: theprint.in<\/p>\n\n\n\n
Prime Minister\u00a0Narendra\u00a0Modi\u2019s first term\u00a0was marked by a vigorous push for Aadhaar, India\u2019s biometric system that\u00a0was often\u00a0projected\u00a0as\u00a0a success story ready for replication in other countries. But a recent ruling by Jamaican Supreme Court\u00a0 poses an important question: does Aadhaar hold a good chance of being exported? Can it become part of India\u2019s diplomatic outreach?<\/p>\n\n\n\n
Over the past few years, the Aadhar project has been implemented with considerable energy. A unique feature of its architecture is that even private entities can use the Aadhaar database for identification and authentication of individuals, as well as develop third party apps.\u00a0Considerable value proposition is perceived to arise from this feature, one that other nations are naturally assumed to be interested in implementing. The techno-legal frame on which\u00a0the Aadhaar\u00a0project is built has also received more traction because the Aadhaar Act was declared\u00a0constitutionally valid\u00a0in material respects by the Supreme Court\u00a0of India\u00a0last year.<\/p>\n\n\n\n
The Jamaican Supreme Court\u2019s verdict in April\u00a0leaves\u00a0the Aadhar verdict\u2019s hopes of\u00a0finding\u00a0customers abroad\u00a0uncertain. In the decision, the Jamaican Supreme Court evaluated the Indian Supreme Court verdict and sided with the\u00a0minority opinion expressed by Justice D.Y. Chandrachud rather than with the majority verdict. To understand the decision, we must engage with the subject matter of legal challenge before the Jamaican court \u2013 the National Identification and Registration Act (NIRA). Gautam Bhatia has\u00a0comprehensively compared\u00a0Jamaica\u2019s\u00a0legislation with the Aadhaar Act, concluding that despite some formal dissimilarities\u00a0\u2013\u00a0the most striking of which is the criminalisation of individuals who refuse to share their personal information\u00a0\u2013\u00a0NIRA broadly enabled\u00a0the same structure as the Indian enactment. This included the collection of biometric identities, a centralised storage architecture, and the linking of databases through a unique identifier. <\/p>\n\n\n\n
During the hearings, Jacqueline Stewart, the chief technical director tasked with oversight of the NIRA project, deposed that many citizens within the age band of 15 to 18 years did not possess any identification and couldn\u2019t\u00a0therefore\u00a0make use\u00a0of employment opportunities. She also emphasised the utility of this exercise in curbing financial frauds, identity theft, money laundering, terrorist financing and other organised crimes. Striking down NIRA as unconstitutional in\u00a0Julian J. Robinson v. The Attorney General of Jamaica<\/em>, Chief Justice\u00a0Bryan\u00a0Sykes followed the views expressed in Justice Chandrachud\u2019s dissent on the acceptability of biometric technologies, which the latter\u00a0said\u00a0stood out\u00a0because of the scale of privacy invasions they posed and must therefore be restricted to narrow purposes such as crime investigation rather than wider identification and authentication of the general population.<\/p>\n\n\n\n Endorsing this view, Chief Justice Sykes noted that the collection of\n biometric information could not be treated in isolation. Instead, the \nentire panoply of activities \u2013 collecting biographical information, \ncombining it with biometric data, automating the process with supporting\n algorithms, seeding the identification numbers across databases \u2013 \nlowered the freedom to stay anonymous and heightened the risk of \nprofiling and generating new information about the data subject. The \nChief Justice also agreed with the need expressed in Justice \nChandrachud\u2019s dissent for \u201ca strong independent and autonomous body \nwhich has the power to examine the operations of the Authority and \nreport to an institution that is independent of the Authority.\u201d<\/p>\n\n\n\n In her deposition, Jacqueline\u00a0Stewart had\u00a0also said that\u00a0Jamaica\u2019s\u00a0National Identification System\u00a0would help implement a coherent e-government and a \u201cjoined-up government\u201d strategy. The Jamaican Supreme Court probed deeper into this part of the affidavit, expressing fears that this strategy, much like the state resident data hubs that\u00a0we have been critical of\u00a0in the past, would result in a surveillance state.<\/p>\n\n\n\n Apart from the fact that another\u00a0country\u2019s\u00a0Supreme\u00a0Court\u00a0scrutinized a near-similar structural architecture as Aadhaar,\u00a0and\u00a0found it to be unconstitutional for its impact on individual rights, the care with which the Jamaican court examined the data offered by Stewart in support of this project stands out. In a more sophisticated application of the proportionality test than Justice\u00a0A.K.\u00a0Sikri\u2019s\u00a0majority opinion, all three judges assessed the factual assertions to conclude that neither were the benefits from the identification programme\u00a0clearly borne out,\u00a0nor was it evident that other, less intrusive measures were considered before choosing the biometric solution. <\/p>\n\n\n\n A key feature of Prime Minister Modi\u2019s second term will be about finding the right place of technological prowess in his government\u2019s overall diplomatic agenda.\u00a0The Jamaican verdict is a reminder that exporting a techno-legal project like Aadhaar as part of India\u2019s diplomacy efforts may\u00a0be\u00a0hard,\u00a0given the domestic legal frameworks and local contexts that exist in other countries.\u00a0 Unlike other kinds of technology exports in areas like defence and energy, digital identities come as a package where technology (and the law supporting it) is only one part of the diplomacy mission while another, critical part, is the actual implementation and proven success within a non-technical, human context. <\/p>\n\n\n\n \nIf Aadhar is to be exported and become a kind of model for citizen \nidentification outside of India, it would require the Modi government to\n integrate a comprehensive rollout strategy. This strategy must revolves\n around Aadhaar, one which quantifies the actual benefits of a similar \narchitecture over other, potentially less intrusive, solutions. India\u2019s \ndiplomatic effort would also need to have measures that mitigate any \nhardships caused because of changes from an earlier system. What will be\n crucial for such an endeavour is a more sustained understanding of how \nsuch a project alters citizen-state interactions, and how such changes \ncan be legally addressed.\n\n<\/p>\n