Anirudh Regidi

How many times is IT Minister Ravi Shankar Prasad going to reiterate that Aadhaar is safe? When will he, or the government, take responsibility for the shortcomings of Aadhaar and actually do something about it?

By now you’re all aware of the massive Aadhaar data leak courtesy of the Jharkhand Directorate of Social Security (JDSS). Granted, the actual biometric database itself still hasn’t been breached, and maybe it never will, but breaches of government and private Aadhaar databases are occurring with alarming regularity and almost always due to ignorance or negligence.

What’s being done about it? Nothing.

Every time a breach like this happens, someone issues a statement that the “database is safe” and imposes a ban on the entity that leaked the data. The most recent breach saw a 10-year ban being imposed on an entity for "accidentally" tweeting out cricketer MS Dhoni’s personal information.

We spoke to Pavan Duggal, a lawyer who is considered to be a leading expert on Cyberlaw in India, and he told us that, "1.4 million pensioners can do nothing about the breach. They have no legal recourse. Section 47 of the Aadhaar Act states that any criminal complaint can only be filed by the UIDAI (Unique Identification Authority of India), and the UIDAI is not going to go and file 1.4 million FIRs over this issue."

Without mincing his words, Duggal states, "Section 47 shows the inadequacy and gross short-sightedness of the act." He explains that the Act was never intended to cover an all-encompassing digital ecosystem that Aadhaar is today. The service was meant to be voluntary and the act looked at Aadhaar from the perspective of a centralised identification database.

Now that the data has leaked, there is literally nothing that anyone can do unless the UIDAI chooses to take action. Judging by the past, the UIDAI will simply issue a statement saying that the database is secure, though I'm not sure if they'll go so far as to ban the JDSS.

As Duggal points out, the legislation is defective to begin with. The act essentially makes any Aadhaar holder a spectator, one with his hands chopped off, adds Duggal.

Clearly, the problem isn't the fact that the data leaked out.

No, the real problem is willful ignorance of facts, that and the government’s refusal to take responsibility for Aadhaar.

As Duggal says, "The fears pertaining to misuse of Aadhaar data are real, because the concerns have not been adequately addressed."

"You can't take an ostrich approach to Aadhaar and hope the problems will go away. They're very real, and they affect everyone," he adds.

Banning an entity for leaking Aadhaar information is not a solution. It doesn't address the underlying issues. "The collective legal and legislative issues need to be addressed first," says Duggal. For example, the Act never even considers the fact that a database would need to be shared or that it could leak out.

Even now, India doesn’t have adequate privacy laws. In fact, when lawyers were arguing for Aadhaar, they very clearly stated that, “The right of privacy is not a guaranteed right under our Constitution”. Attorney General Mukul Rohatgi is quoted as saying, “The question of violation of right to privacy does not arise when it does not exist.” As horrifying as that statement is, it's perfectly true.

The Hindustan Times, which reported the Jharkhand data breach, noted that, “In Jharkhand, officials were surprisingly sanguine about the breach, suggesting that they had been aware of the situation for several days.”

Why should this attitude come as a surprise from a government that is pushing to make Aadhaar mandatory for a number of services, including the filing of income tax returns, in direct contravention to a Supreme Court order barring the same?

The same government has also gone out of its way to collect biometric data from its citizens and implement Aadhaar-based digital payment and authentication systems with inadequate testing.

Despite these issues, there's no escaping Aadhaar. Over a billion Indians are already registered on the service and their private lives are at stake. The system needs to be made more robust, and that can only happen when the problems are first acknowledged.

The National Payments Council of India (NPCI) and the UIDAI, the two government entities that should be responsible for Aadhaar, are refusing to even take responsibility for the platform.

And why will they? The Aadhaar Act grants the UIDAI complete immunity from prosecution of any kind. If anything goes wrong, there's no legal recourse for anyone.

By relying on inadequate laws and collecting private, biometric data, Duggal says that India is sitting atop a volcano that's just waiting to erupt. When it erupts, the UIDAI will essentially be immune from any prosecution and the country as a whole will suffer. "Such a situation will irreparably impact the lives and identities of the people," claims Duggal.

The problem with the Act is that it was designed for a different Aadhaar than we know of today. It has no provisions for cybersecurity, it doesn't define roles and responsibilities and makes no mention of legal recourse for the average citizen.

Ideally, a government body like UIDAI should be held accountable for everything Aadhaar. It's functioning also needs to be more transparent to begin with.

As Duggal suggests, when we're building an entire ecosystem on a fragile framework, our first duty is to strengthen that framework.

There are no checks and balances, there is no transparency and it's still not clear if Aadhaar even complies with the IT Act, states Duggal.

To start with, the IT Act and Aadhaar Act both need to be amended, suggests Duggal. He believes that the focus should be on cybersecurity and the privacy of the individual. The roles and responsibilities of the organisations involved needs to be clearly defined. Remedies need to be specified.

Only then will there be accountability in the system, and only then can we start trusting it.

Aadhaar has potential, but it's not perfect. There's still a lot of work to be done towards implementing the service, and that will take time.

Passing the buck around at a time like this will not help.