[Ed Note : The following post is based on Dr. Ramanathan’s enlightening talk at the NALSAR University of Law, Hyderabad. It has been authored by Karthik Subramaniam and Yashasvi Raj, first year students of the aforementioned university, who, in a slightly longer but informative read aptly put forth Dr. Ramanathan’s views on the Aadhar issue and its judicial journey.
Dr. Usha Ramanathan, an internationally recognized legal expert, is currently research fellow at the Centre for the Study of Developing Societies and professor at the Indian Law Institute. Since 2009, she has consistently brought forth the loopholes in the Aadhar project, exposing its shoddy functioning.]
Repeated data breaches and apprehensions of data being bought and sold online are just some of the issues surrounding the central Aadhar issue. Before addressing what happened in the UID litigation, it is more important to examine why the litigation was necessary in the first place. The UID project, after all, was brought in to deal with corruption, curb leakage of funds, provide everyone with a unique identity, and to help the poor reap the benefits that they are entitled to.
People first heard about the project around 2009 when a body called the Unique Identification Authority of India (UIDAI) had just been set up to helm the Aadhar project. In July that year, only after Mr. Nandan Nilekani took over as the chairperson of the project were there interactions with people from various backgrounds. Questions were raised about what a project like this would mean from the point of view of privacy. The lack of answers to these questions has led many people to follow the project closely ever since.
Biometric Data – Lost in Transit?
In late 2009, a biometrics standards committee cited a study conducted with a sample of 50,000 people whose biometrics were collected under the Aadhar programme. This study found 2% to 5% of the biometrics to be inaccurate. This clearly showed that there would be a lot of ambiguity in implementing the programme. Iris scanners were then recommended. A biometric expert was asked to look at continuing the project with Iris and Fingerprints. However, lack of knowledge about this technology and its implications was concerning. Studies showed that something of this scale had never been attempted before in the developing world and would not be possible with the current technology being used. The magnitude of Aadhar was thus the first problem that was spotted. This however was just the beginning.
Initial Problems with the Aadhar
The first strategy overview document released by the Planning Commission of India in 2010 stated that the poor would be able to reach their entitlements through Aadhar. This gave the idea that the ID itself did not have any entitlements and that it would just be a tool to get one’s entitlements. Registration was made voluntary, but this had a major caveat. If any agency made its possession mandatory, then it would become compulsory. The UIDAI soon started approaching government departments, requesting them to make the possession of Aadhar mandatory for the disbursal of various benefits. Thus, by early 2010, more concerns arose.
In 2013, Edward Snowden’s reports were released, showing how databases were being misused by countries for surveillance purposes. Similarly, India was asking the general public for information, stating that this would be better than giving it to some other party. The State thus started imposing the belief that people belonged to the State, and therefore had to act as asked. This could almost be called as an assertion of power over the people and application of the idea of ownership over them. However, the existence of fundamental rights and the State’s claim of ownership over the people cannot co-exist.
Surveillance, Personal Security Issues, and National Security Issues were also a few concerns raised. People questioned whether the terms “Electronic” and “Security” could be used in the same sentence in the Aadhar context. It was now, not about the details in the database, but about how the numbers present in the database could be used and linked in multiple databases. The UID number became the bridge between multiple databases that had one’s information. This did not seem to be a good idea.
Nature of the Project
The term UID stands for Unique Identification Project, and not Unique Identity Project. This implied that it was about others being able to identify someone and not about one being able to assert his/her identity. While it was assumed that the term “Unique” was attached to one’s biometrics and one would be able to identify oneself based on the same, only years later was it understood that this wasn’t what it implied. “Unique” was instead attached to the number. This raised concerns about privacy, for detachment of the unique number from the person and its usage by miscreants was possible.
There were words used early in the project that were critical – “Unique, Ubiquitous and Universal.” Ubiquitous implied the presence of Aadhar related data in every database. Because of this Ubiquity, it would become possible to make this data Universal. The only way one would be able to access the benefits would be if his/her details in the UIDAI records matched with the biometrics. If that did not happen, then the person would be forced to clean up, i.e. fix the problem and change the information, thereby clearing the ‘garbage’ which had entered the system. Therefore, the onus and the responsibility to a large extent, of making the system work, fell on the public. Wrong information would lead to someone being considered fake, duplicate or a ghost; all words used very frequently in the process leading up to the project.
Constitutional Relationship – An Abuse of Power?
It was observed that since the beginning of the project, this relationship between the citizen and the state was slowly starting to change. It would be pertinent to mention that the relationship between the state and the citizen is mediated through the Constitution. The Constitution is not about the power of the State over the people, but rather, the “limits” of the power of the State. A State can exercise its powers only within the boundaries set by the constitution. In 2011, there were talks about making this whole system of identification mandatory. The refusal to provide LPG cooking gas without a UIDAI number was the starting point. The authorities had to pull this back very quickly due to adverse public reactions and shallow enrolment. The compulsion had just begun. It was at the end of 2012 that the first splash of this compulsion hit the public. Advertisements from various agencies including the Centre came out, stating that one would lose various services if he/she did not possess a UIDAI number. Biometrics taken under the aegis of this project were being used to provide MNREGA wages to the poor, PDS, etc. People soon started challenging various elements of the same.
Justice Puttuswamy’s concerns about Aadhar
Justice Puttuswamy was however the first person to raise this issue in the Supreme Court. He questioned how such a project could be supported without the presence of a law. Proponents of Aadhar argued, or rather, gave excuses that law should not be an obstacle to innovation and therefore laws should be made to fit the technological needs of the times. This approach however impliedly looked at law as an obstacle, and not as a tool for protecting the people. A Parliamentary Standing Committee which was subsequently constituted entirely rejected the idea of such a project because it raised concerns about privacy, about who would hold the data of the people, and how such a biometrics system would be used, amongst other concerns. Till March 2016, no law was passed. A law was subsequently passed as a Money Bill, preventing any discussion or debate in the Parliament.
Justice Puttuswamy also raised privacy concerns stating that such a project which impacted the privacy of the people should not be carried on without proper analysis of its impacts. He also brought up the issue of illegal migrants being able to possess a UIDAI number. He, therefore, questioned the validity of Aadhar. Ironically, the project presented itself forward as a “solution.” In 2013, a few more problems were raised, such as, how people who could not or were not able to access Aadhar would be included.
Judicial Treatment of Aadhar – more questions, satisfactory answers?
In 2013, the court started giving interim orders, the first such order being on 23rd September, 2013. It passed an order stating Aadhar was not mandatory, but was voluntary and that it was not to be issued to illegal migrants but only to residents. This was done in order to make the system smoother. The court held that nobody would be denied any benefit or entitlement because of not having the Aadhar card. Although there was no such thing as the Aadhar card, the government counsel requested that this not be put in the order. The plan about making the Aadhar card mandatory became clear. Six orders were subsequently passed, each one going one step further. In March 2014, in the case of the UIDAI and CBI, the court said that the forms and circulars needed to be changed as it was needed to be made plain that the Aadhar number wasn’t mandatorily required for anything. An order regarding the same was thus passed in March 2015.
The government’s job is to protect, respect and fulfill Fundamental Rights. However, in a significant development, in August 2015, when the court agreed to hear the matter fully, the government asserted that people don’t have the right to privacy. Even as the petitioners were beginning to establish a case, the government did it for them by saying that people don’t have such a Right. It is important to note that the government was saying this only in relation to the UIDAI. Down the hall of the Supreme Court in another case which was about striking down Sec. 499 – Defamation, the government requested that it not be struck down because people had a right to privacy. However, when the UIDAI bill was introduced, Mr. Jaitley had said that it would be based on the assumption that privacy was a fundamental right.
In January 2017, the court was approached again. It was asked why it hadn’t constituted a larger bench as required to by the August 2015 order. The Chief Justice said that he didn’t have enough judges to constitute a bench at the time. It was presumed that a nine-judge bench would be constituted. Then in February 2017, in a public interest litigation, a group called Lokneeti said that terrorists were getting sim cards and asked what the government was doing to stop this. Initially, linking of mobile phones and sim cards with the Aadhar number was denied by a five-judge bench. But the Attorney General at the time said that verification of sim cards could take place by said linking. The court did not direct the government to use this UID system but agreed to its implementation if it took care of the situation. Unfortunately, the same Attorney General appeared who had appeared for the Government in October of 2015 when it held that no linking shall take place. There was further misrepresentation after the order where it was said the court has ordered verification and linking was made mandatory.
In July 2017, the Chief Justice constituted a bench to hear the matter. Since 2010, different lawyers had been contacted, all of whom had huge practices. When the privacy case actually came up, there was a whole batch of lawyers who were ready. They knew what the matter was about and what the consequences would be. The hearings happened over a period of six days – they only lasted a week. There was extraordinary coordination among the lawyers. Each one of them put in huge written statements. On seeing the judgment, it was noticed that a lot of it was picked up from the written submissions. All this was done pro bono. The lawyers were not just not charging fees but were also incurring expenses. Their offices were open through the night. Senior lawyers would sit in the court hearing others’ arguments, which is not the norm. The lawyers were asked as to why they were doing all this. Their answer was profound and it was deeply appreciative that they saw the situation the way they did. They responded with “If we lose this case, there is no constitution left.”
As this case moved into the final stage, news about people dying came about. On 17th January, 2018, the petitioners started their argument regarding the same. Their litigation was filed as a PIL but it was in reality an adversarial litigation. When the government actually spoke after all the petitioners, there simply wasn’t any argument put forward. They said the LPG savings had been huge, claiming twenty-two thousand crores of saving. The CAG mentioned that out of the savings, a large part was due to digitization and a larger part was due to fall in oil prices worldwide. If anything, seventeen thousand seven hundred and ninety-three crore rupees had been saved, which could have been influenced by other factors as well.
Due Process, or lack thereof?
Jharkhand had cancelled 11.5 lakh ration cards – many cases because there was no link to the UID. Now, the questions to be raised were – was there a social audit? Did officials go back to the fields and check if the people were there? Were they duplicates? Why did they not enroll? There was simply no system. It was all technological determinism. If not linked then the Aadhar card, one was considered fake. People had been excluded without any process. In a state with a high tribal population coupled with a high rate of malnutrition, the PDS is regarded as a lifeline for many but this very lifeline was cut off. Some of the people had begun to die. It came to be known that there would be a genocidal effect on the poor because of Aadhar. For the Public Distribution System, people would have to enroll, go to the dealer and link their Aadhar, and would have to do so every month, their biometric needing to work with each visit. The first starvation death that occurred because of UIDAI was because the victim hadn’t managed to link his number. This was the level of poverty – and these people were being asked to navigate a system and further barriers of being put. 13-15 deaths are recognized. Out of these, 7 are linked with UID while others are contested. Further, non-linking serving as a barrier did not mean the fakes were weeded out. It only meant that those who didn’t link were weeded out. It was worrying to see that the government was willing to go ahead with the project without knowing what the very purpose of the project was.
Trickle Up Theory – Businesses meet Biometrics
An argument was made by private individuals and private companies to allow them to use the data as a business database, to use it as an identity platform on which many apps would be built. When the case was under way, five such businesses came to the court to be a part of the litigation. They requested the court to not change anything or their businesses would collapse. The link between businesses and the government in this project was extraordinary. Mr. Nilekani was brought from Infosys and was given the rank of a cabinet minister without any of the responsibilities of a cabinet minister. The policies were made by external political-parliamentary agencies. Businesses have always negotiated and lobbied with the state, but when they enter the government and become part of the government to make decisions which affect citizens, it becomes a different story. This story further takes a different, scarier turn because of something called “India stack”, which is a stack of applications such as e-sign, e-kyc, digi-locker. All these are tools created by technologists and they’re being evangelized to the state, so that their businesses can be built on it. Thus, NPCI, GSTN, artificial intelligence, algorithms, all these are the wider vision of why we have the UIDAI.
The ambition of knowing people too intimately is anti-democratic. The kind of ambition shown by the state is an ambition that was shown by businesses, by Cambridge Analytica, by Facebook. All these are agencies were involved in these projects. Unlike earlier times when industries would be involved in the work they were doing, today all of these make use of artificial intelligence and algorithms which means they are moving beyond their business into other businesses. They also wanted to get into health predictive work.
The NET health statistics potentially place India at the forefront of medical research in the world. The UIDAI will result in some of the largest health databases with secure anonymized aggregated data. A theory is being presented as a ‘trickle up theory’ wherein the public has become a product which supplies data. This is a theory in which there are many people in this country who have nothing to offer the market but have many things which the market wants. This is data about themselves. This data will trickle up and for it to trickle up, people have to leave digital footprints everywhere. The court expressed concern that the government wanted to do a certain set of activities which monitored social media so that it could do perception analysis to see what people were thinking about what government programs were and what he government needed to do to convince them that the programs were good.
The problem of how to protect rights and how to train a state to become lawful again is now presented. This project has shown us the extent of lawlessness of the state. The courts cannot become protector of people’s rights unless the people themselves recognize their rights and start asking for them. The popular belief is that India has anarchic people, that it simply has too many people and therefore there is anarchy. If there is one thing that this project has revealed, it is that ironically, there is not enough anarchy. So, if there is one thing that that’s required of Indian citizens as Constitutional citizens is to protect the Constitution and to produce a little anarchy.