Two Years Of Aadhaar Verdict: What Are The ‘Costs’ Staring At Us?

Two years since the Supreme Court’s Aadhaar judgment, no end to Aadhaar’s ‘function creep’.

Image used for representational purposes.

(Photo: Erum Gour/The Quint)

For the past six months, everyone in India has been subject to some form of lockdown. The country has seen hitherto unimaginable levels of distress during this time, particularly among our marginalised and impoverished.

In this time, the government has chosen to adopt a catena of measures aimed at ‘good governance’ which have only brought further disruptions to the lives of the most underprivileged and impoverished – far from the promised lessening the woes of the people.

In keeping with the tenor of the past few years, many of these measures deepen encroachments upon fundamental human rights, and include legislation that widens the spread of Aadhaar-based verification or authentication for essential services. Invariably, these have watered down the strictures imposed by the Supreme Court in its landmark ‘Aadhaar’ judgment in Justice KS Puttaswamy vs Union of India, which was pronounced two years ago on this day, 26 September 2019.

If there were any hopes that the judgment would at least check the ‘function creep’ of the Aadhaar project, these continue to be dampened by the government’s legislative and executive actions since the judgment.

Govt’s Unlimited Powers To Expand Use of Aadhaar-Enabled Services

When we marked the first anniversary of the judgment in 2019, we were grappling with the fallout of the Aadhaar and Other Laws (Amendment) Act, 2019. This Amendment Act introduced provisions for ‘requesting entities’ to use voluntary Aadhaar-based authentication, without restricting the definition of said requesting entities. Further, the amendments to the Telegraph Act and the Prevention of Money Laundering Act specifically included Aadhaar-based authentication as an additional option by which ‘reporting entities’ could identify mobile and banking customers. Only the Unique Identification Authority of India (UIDAI) gets to decide who these entities are.

This year, we have the The Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020, to contend with.

These brief Rules effectively give the government unlimited powers to expand the use of Aadhaar-enabled services, under three broad categories:

• for usage of digital platforms
• to prevent dissipation of social welfare benefits
• and to enable innovation and spread of knowledge

In response to these Rules, we have argued that not only do they cross the red lines drawn by the Supreme Court through the use of expansive and undefined terms like ‘good governance’, the government’s focus on Aadhaar is based on a flawed notion of how leakages work within welfare systems, choosing to treat people who depend on these entitlements as potential defrauders, over systemic reform.

Aadhar’s Implications For National Health ID

On 29 February and 1 March 2020, Rethink Aadhaar and Article 21 Trust joined hands with many other grassroots campaigns and movements to take stock of what has transpired since the 2018 Aadhaar judgment, at a People’s Tribunal on Aadhaar-related issues. The participants at the Tribunal included lawyers, activists, and experts from civil rights groups like the People’s Union for Civil Liberties (PUCL), the Right to Food Campaign, Mazdoor Kisan Shakti Sangathan, Jan Swasthya Abhiyan, and Sama Resource Group for Women and Health apart from experts advocating on disability rights, digital rights and policies, gender rights, criminal reform, among others.

The experts and stakeholders who testified at the Tribunal reaffirmed that the poor design, lack of accountability and surveillance and commercial ambitions of the Aadhaar project continued to leave behind a trail of hardship, exclusion, and even deaths, despite the conclusions of the Puttaswamy judgment.

Some of the testimonies submitted in the Tribunal foreshadowed what was to come. Experts warned about the use of Aadhaar or an Aadhaar-like digital identity system for databasing people’s health records – a looming reality today after the Prime Minister’s Independence Day announcements on the ‘Health ID’ in the National Digital Health Mission. Concerns were also voiced about mandatory Aadhaar-authentication for healthcare testing, which has also come to pass during the pandemic as evidenced by the mandating of Aadhaar verification for COVID-19 testing in, for instance, Ahmedabad, Delhi, and Rajasthan.

How Aadhaar ‘Deprived’ People Of Food & Basics

Organising the Tribunal involved gathering a significant volume of evidence illustrating the abdication of responsibility by all responsible parties, including the UIDAI and governments at the Centre and states, which have continued to ignore people being denied food, education, work, wages, pensions, and a host of other Constitutionally and legislatively guaranteed entitlements, due to Aadhaar-related issues.

Data compiled by the Right to Food campaign showed that nearly 100 starvation deaths have been reported since 2015 due to Aadhaar-related exclusions.

Among those who have died of starvation this year, even before the pandemic struck, is 2-year old Sakshi Kumari from Jharkhand. Her death eerily echoed the death of 11-year Santoshi Kumari in 2017 which, along with all the other starvation deaths, could not move the Supreme Court into calling the government to account in Puttaswamy. The Court instead considered it sufficient to express faith in the steps being taken by the government to prevent exclusions. An Abdul Jameel Poverty Action Lab survey that concluded early in 2020 found that 88 percent of 1.44 lakh cancelled ration cards in Jharkhand alone belonged to genuine beneficiaries and not ‘ghosts’ as the State believed.

In Odisha, the 2019 pilot for the One Nation One Ration Card deprived 19 lakh people of their rations.

Many were excluded even though they had linked their Aadhaar numbers to their PDS ration cards because records were not updated. Without learning the lessons of this ill-thought-out exercise during the pandemic, the Odisha government went ahead with plans to link social security pensioners through Aadhaar linkages, a plan that threatened to leave 11 lakh pensioners in the lurch.

SC Verdict ‘Ignored’ Exclusion-Related Evidence Against Aadhaar

As if to worsen the plight, the government mandated Aadhaar authentication even to receive the meagre one-time payments announced as relief during the COVID-19 pandemic.

Temporary relief from linking was only given after widespread protests. Similarly, a national rural survey found that those without ration cards found it difficult to access food supplies offered as pandemic relief.

In 2017, the prime minister himself had claimed in the Lok Sabha that Aadhaar-linking led to the discovery of as many as 4 crore ‘fake’ ration cards. Subsequently, RTIs filed by civil society members revealed that neither did the government have any data to back this claim nor was the claim correct – the figure was retroactively revised to 2.33 crores.

Perhaps we should be grateful that the government is now simply saying that no data is available to substantiate the impact of the pandemic.

The jury members at the Aadhaar Tribunal were unanimous in concluding that the SC judgment ignored exclusion-related evidence. The jury also found that, by not considering this evidence, the Constitution Bench’s application of the proportionality test (prescribed in the 2017 Right to Privacy judgment) was flawed. One jury member even went so far as to say that the Aadhaar project served no legitimate state interest. The jurors also opined that the Aadhaar project had always made commercial exploitation a priority.

They also disagreed with the SC judgment in finding that the Aadhaar project’s ‘function creep’ enables surveillance, even if such surveillance extends beyond Aadhaar.

“Little To Show By Way Of Aadhaar Benefits For The Poor”

In stark contrast is the government’s abiding belief, as enunciated by the Minister for both Law and Information Technology Mr Ravi Shankar Prasad, that a popular mandate is sufficient to bring about any legislation, and that such legislation does not violate the Supreme Court order. While several petitions seeking a review of the 2018 Puttaswamy judgment await hearing by the Supreme Court, questions regarding the validity of enacting the Aadhaar Act, 2016, through the Money Bill route, and the arbitrariness of linking the Aadhaar number with PAN, have resurfaced.

As the economist Jean Dreze wrote, “There is little to show by way of Aadhaar benefits for the poor. And the costs are staring at us.”

The late Prof Shamnad Basheer sought accountability for one of these costs – breaches of personal data – in a petition still pending before the Delhi High Court. Contrary to Mr Nandan Nilekani’s contention in July 2019 that all Aadhaar issues have been settled, the last word on the Aadhaar project remains as yet unwritten.

(Article 21 Trust, and Rethink Aadhaar along with other organisers of the People’s Tribunal on Aadhaar-related Issues will be releasing the Jury Report of the Tribunal on 2 October 2020. For more details please visit rethinkaadhaar.in.)

(Maansi Verma is a lawyer; founding trustee & chair, Article 21 Trust. Prasanna S is an Advocate, Supreme Court of India, founding trustee, Article 21 Trust. Prasanna S tweets @prasanna_s. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)