The judges constituting the majority in the Supreme Court bench that heard the case against the unique identification (UID)number saw the challenge to the project and the law as being “primarily on the ground that it violates right to privacy, which is a facet of fundamental rights enshrined in Article 21 of the Constitution”. Justice K.S. Puttaswamy’s petition did indeed raise questions about the unspoken implications of the project for the right to privacy. He was also concerned that the UID number would be given to everyone, regardless of nationality. And there was outrage discernible in the petition that a project to fix our identity was being launched without a law. In 2010, civil society pressure led to the introduction of the National Identification Authority of India Bill in the Rajya Sabha, but in December 2011, the Standing Committee of Finance, to which the Bill had been referred, categorically rejected not just the Bill but the project as well. “The committee would, thus, urge the government to reconsider and review the UID scheme as also the proposals contained in the Bill in all its ramifications and bring forth fresh legislation before Parliament.” This was simply ignored.
The project had been promoted as voluntary, but in 2012 that changed and the UID scheme was made mandatory for all manner of entitlements and services such as subsidised commodities from public distribution system outlets, widow pension, scholarships for students belonging to economically weaker sections and provident fund. In Delhi, the Revenue Department began to refuse services without the UID number. By end December, the Unique Identification Authority of India (UIDAI) had issued 22 crore numbers. Coercion and the threat of denial of service were used to drive people to enrol for an Aadhaar number.
By 2012, UIDAI documents had established that biometrics were an experiment and the people of India, especially the poor who relied on the state for basic services for survival, were its lab rats. The possibility of exclusion was a real worry. That there was reason to worry was reinforced in 2015 when the UIDAI admitted that it had set up the UIDAI Biometric Centre of Competence to do research because the “nature and diversity of India's working population adds another challenge to achieving uniqueness through biometrics features”, and its mission was “to design biometrics system that enables India to achieve uniqueness in the national registry”.
The range of petitioners who went to court challenging the constitutionality of the UID project raised a spectrum of issues: “seeding” the number in multiple databases and the enhanced power to practise surveillance, tagging, labelling, tracking; the national security risk of having every person in the country on an electronic database; the access given to companies such as L1 Identity Solutions and Safran and Accenture and their closeness to the Central Intelligence Agency and Homeland Security of the United States; the vulnerability if data are leaked; and the inversion of the relationship between the state and the people with the state demanding that people become transparent while it becomes more and more opaque.
As time moved on, the issues expanded. In September 2013, the Supreme Court ordered that no one should be denied any service merely because they did not have an Aadhaar number. The UIDAI immediately went to court to admit that it wanted to be allowed to make it mandatory even if it said it was voluntary. The court did not oblige. So, the UIDAI just went ahead, acting as if the court order did not exist. Six times between the start of the project and the enactment of the Aadhaar Act in March 2016, the court gave its order, but each time the UIDAI shrugged it off like it was nothing more than a minor irritant. If the court cannot act to save people from unlawful power, what is the recourse? The Act was passed as a Money Bill, which it plainly was not. More than 2,000 people in Meghalaya approached the court saying that their religion warned them about the “mark of the beast”. “He causes all, both small and great, rich and poor, free and slave, to receive a mark on their right hand or on their foreheads, and that no one may buy or sell except one who has the mark or the name of the beast, or the number of his name” (Revelation 13:16-17)
What is happening resembles too closely the caution, and they were asking that their religious beliefs be respected. Data breaches started happening, and the UIDAI chose to attack those who revealed the vulnerabilities of the system. The corporate interest in using the UID database as an “identity platform” on which businesses could be built showed up, as did the hijacking of the project by India Stack. Conflict of interest made its appearance in the public domain, but only peripherally in the case.
It was not primarily on the grounds of privacy, as the majority judgment said. It was on all these grounds. Privacy did acquire primacy, but that was after the court was told that the people of the country did not have a right to privacy.
How does the majority judgment, written by Justice A.K. Sikri for himself, Chief Justice Dipak Misra and Justice A.M. Khanwilkar, speak of these concerns?
The judges have based their factual understanding of the project on what the project authorities have said to them: that it is foolproof, unique, incapable of being duplicated. The main source of information is a PowerPoint presentation made to the court by A.B. Pandey, the chief executive officer of the UIDAI.
Starvation deaths linked to the UID had begun to surface even as the case was being heard. On September 28, 2017, Santoshi, 11, died in Jharkhand. His family members were enrolled, but they seem to have been unable to link their UID number with the ration list. The story of Santoshi’s death after eight days of going without food, makes painful telling. On September 27, 2018, one day after the Supreme Court judgment was delivered, Chunni Bai died in Rajasthan. It is estimated that about 25 people have died owing to UID-linked starvation. The court refers to studies done by non-governmental organisations and researchers on exclusion, but the respondents (read, the government, the UIDAI) have refuted such studies. “These become disputed questions of facts. It will be difficult to invalidate provisions of parliamentary legislation on the basis of such material, more particularly, when their credence has not been tested,” the court said
The Right to Food Campaign in Karnataka, Jharkhand and Rajasthan and persons with leprosy from Andhra Pradesh had filed affidavits from the field. But the court found these to be anecdotal. “The government,” the judges explained, “seems to be sincere in its efforts to ensure that no such exclusion takes place and in those cases where an individual who is rightfully entitled to benefits under the scheme is not denied such a benefit merely because of failure of authentication. In this scenario, the entire Aadhaar project cannot be shelved. If that is done, it would cause much more harm to the society.” Given the serious nature of the reports on large-scale exclusion—the figure for Rajasthan, for instance, still hovers around 23 per cent—and death, maybe the court could have the reports investigated. This has been done in many cases before the Supreme Court.
Biometrics
The judgment does not indicate what the judges thought of the various documents of the UIDAI regarding biometrics. In 2010, the UIDAI had said that “there is a lack of a sound study that documents the accuracy achievable on Indian demographics (that is, larger percentage of rural population) and in Indian environmental conditions (that is, extremely hot and humid climates and facilities without air conditioning)”, and a biometrics consultant had produced a proof of concept report in December 2010, a few months after the first enrolment. State government records reveal high failure rates, and the dissenting judgment invokes some of them. Pandey, in his PowerPoint presentation, said that in trials they had done, the failure rate had been 8.54 per cent of those who participated in iris authentication and 6 per cent of those who attempted fingerprint authentication. The UIDAI did not have figures from the States, he said. The judges relied on a different figure. “The Authority has claimed that biometric accuracy is 99.76 per cent,” they said, “and the petitioners have also proceeded on that basis. In this scenario, if the Aadhaar project is shelved, 99.76 per cent beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out with the bathwater. In the name of 0.232 per cent failure (which can in any case be remedied), should we revert to the pre-Aadhaar stage with a system of leakages, pilferages and corruption in the implementation of welfare schemes meant for the marginalised section of the society, the full fruits thereof were not reaching such people?”
What the Authority was saying to the court did not, as Pandey had told them, include the figures from the States. Also, the Economic Survey 2016-17 stated that biometric failure rates were “49 per cent for Jharkhand, 6 per cent for Gujarat, 5 per cent for Krishna district in Andhra Pradesh and 37 per cent for Rajasthan”. If the court was making its decision on the basis of a failure rate of 0.232 per cent, it may have to revisit its order.
Privacy
The nine-judge bench decision of August 24, 2017, was categorical. Privacy is a fundamental right. It is a natural right, an inherent right, it was not given by the Constitution but recognised by it, and not having been given, it cannot be taken away either. There can be “no waiver of fundamental rights”. The right to human dignity is a fundamental right, and “reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)”. The judgment delivered by four judges in the privacy case emphasised what had been said in the Kesavananda Bharati case: “We are unable to agree with the contention that in order to build a welfare state, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the state should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way.”
Justice Sikri’s majority judgment has a different view of privacy. Piecing it together from the judgment, privacy is intrinsic to freedom, liberty and dignity. Privacy is the constitutional core of human dignity. The sanctity of privacy lies in its functional relationship with dignity. In reading socio-economic rights into human dignity, the community approach assumes importance along with individualistic approach to human dignity. Human dignity is a constitutional principle rather than a free-standing fundamental right. Dignity as a community value emphasises the role of the state and community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a “certain idea of the good life”. There needs to be balancing of two competing fundamental rights, the right to privacy on the one hand and the right to food, shelter and employment on the other, the judges said. “Axiomatically both the rights are founded on human dignity. At the same time, in the given context, two facets are in conflict with each other. The question here would be, when a person seeks to get the benefits of welfare schemes to which she is entitled to as a part of the right to live life with dignity, whether her sacrifice to the right to privacy, is so invasive that it creates imbalance.”
The court’s judgment is that the UID number empowers the “underprivileged and marginalised”, they get a “unique identity” and “it also enables such individuals to avail themselves of the fruits of welfare schemes of the government which are floated as socio-economic welfare measures to uplift such classes. In that sense, the scheme ensures dignity to such individuals.” Some aspect of autonomy may be “sacrificed” in setting out welfare schemes, and the court will perform the “balancing” act. One criticism of this approach recalls George Orwell’s Animal Farm , and the writing on the wall as the book draws to a close: All animals are equal; but some animals are more equal than others.
Surveillance
Convergence, profiling, breaking down of silos by the use of a single number as identifier across discrete databases, labelling and tracking across time and across purposes were among the issues that had been taken to court. These were not hypothetical. The UIDAI was demonstrably working with State governments to set up State Resident Data Hubs (SRDH) as set out in a 2012 document. The SRDHs were enabled to have a “360 degree view” of their residents. These were before the court. The majority judgment, however, saw surveillance in the context of the UID project as being about the amount of data that the UIDAI has with it. Judging the amount of data that are with the UID as minimal, the judges directed that records of authentication should be deleted after six months and metadata be contained. That about sums up the discussion on surveillance.
Interestingly, the court “take(s) on record (in a footnote) responsible statements of the learned Attorney General and Mr Dwivedi who appeared for UIDAI that no State would be interested in any mass surveillance of 1.2 billion people of the country or even the overwhelming majority of officers and employees or professionals. The very idea of mass surveillance by state, which pursues what an ANH [Aadhaar number holder] does all the time and based on Aadhaar, is an absurdity and an impossibility.”
The judgment does not deal with the ubiquity introduced into the project by “seeding” the number in all manner of databases. It is significant that even after the passage of the Aadhaar Act, there is no law allowing seeding. The surveillance, and labelling, potential is unexplored in the judgment.
Parliamentary defiance
The passage of the Aadhaar Act, 2016, as a Money Bill did not have legitimacy. Constitutional questions abounded. Article 110 of the Constitution is specific and unequivocal that any Bill to be passed as a Money Bill must have only provisions that are covered by that Article. These are, simply stated, matters concerning the putting in and taking out of monies from the Consolidated Fund and Contingency Fund. Its purpose is to ensure that the government does not come to a standstill. The Rajya Sabha has 14 calendar days in which to debate and suggest changes to the Bill, but the Lok Sabha does not have to heed any of this. This is plainly an extraordinary provision in the making of laws and cannot be deployed in regular lawmaking. Passing the Aadhaar Act as a Money Bill was an act of parliamentary defiance. The Constitution provides that where there is a dispute about whether a Bill is a Money Bill or not, the decision of the Speaker is final. The question before the court was whether the Speaker’s decision could be judicially reviewed. The court held that it could be.
The majority judgment, however, held that the court’s review of the Aadhaar Act led it to hold that it indeed is a Money Bill. That is difficult to explain. The judgment sets out 18 clauses of the Act to test if they suffer from the “vice of unconstitutionality”. The bench strikes down some provisions, for instance, parts of Section 57, which allows companies and individuals to use the UID database, and recommends amendments to the Act, for instance, the right of individuals and victims whose right is violated to file a complaint and initiate proceedings. (As the law stands, only the UIDAI has this authority, to the exclusion of everyone else, including those adversely affected, and even when the complaint may be against the UIDAI.)
To arrive at this finding that the Act is valid, the court used the doctrine of “pith of substance”, arguing that since the core of the law was the delivery of benefits, services and subsidies from the Consolidated Fund of India, it was, in pith and substance, a Money Bill. This is not a convincing statement of law and may need to be revisited soon.
Children
The judgment is solicitous to the rights of children and recognises their rights in two stages: when they may still be children, at which time the UID number may be used only with parental consent and not be demanded of them. (The court does not acknowledge the experience of “coercion as consent” that has been at the centre of this project.) When the child turns 18, there is an opportunity to “exit” the system.
Others too may exit the system. “Since, we have held that enrolment is voluntary in nature, those who specifically refuse to give the consent, they would be allowed to exit from Aadhaar scheme,” the judgment reads. “After all, by getting an Aadhaar card, an individual so enrolled is getting a form of identity card. It would still be open to such an individual to make use of the said Aadhaar number or not.” Those needing state assistance are made an exception, again: “Those persons who need to avail themselves of any subsidy, benefit or service would need Aadhaar in any case. It would not be proper to cancel their Aadhaar cards.”
IT returns and PAN
In June 2017, Justices Sikri and Ashok Bhushan held that the law (a Money Bill, again) mandating the linking of UID numbers with PAN (permanent account number), and including the number while filing income tax returns was valid. In that judgment, the judges had held that a law could not be challenged on the grounds of arbitrariness. In August 2017, a majority in the triple talaq judgment held that that was not the correct position in law. In June 2017, privacy was still an uncertain right, and the judges had said that their decision could be revisited once the question of privacy was decided. As we know, privacy has been unequivocally proclaimed to be a strong right. Justice Sikri found that the law could stay as it was and held that it passed the threefold privacy test: of there being a legitimate state aim, a law and of proportionality.
Bank accounts, mobile phone linking
Making the UID number mandatory “in the name of checking money laundering or black money is grossly disproportionate”, the judges held. There should have been a proper study about the methods adopted by persons who indulge in money laundering, the kind of bank accounts such persons maintain, and target those bank accounts for the purpose of Aadhaar. It has not been done. A mere ritualistic incantation of “money laundering”, “black money” is not enough; no explanations have been given as to how the mandatory linking of every bank account will eradicate/reduce the problems of “money laundering” and “black money”; the state has not discharged its burden as to why linking of Aadhaar is imperative.
The contrast with the court’s reliance on assurances of the state in relation to subsidies, services and benefits is instructive.
There is no law authorising the linking of the UID number with mobile phones; it fails the test of proportionality, and of necessity, and “there can be other appropriate laws and less intrusive alternatives”.
Ever since the first interim order of the court on September 23, 2013, the government—first the United Progressive Alliance and then the present National Democratic Alliance—have been in flagrant violation of court orders. The UID database was built on coercion, bullying and threats of exclusion, punishment and freezing of monies and services. The Aadhaar Act was enacted in 2016. Even if the court were to consider that the government had the legal authority once the law was passed, that cannot be said for what transpired before the law. Section 59 of the Aadhaar Act ratifies everything that was done between 2009 and 2016. The majority are prone to forgive and forget.
Significantly, the first response, apart from claiming “victory”, was to assure companies that the government would do what it takes to bring them back on board.
Usha Ramanathan works on jurisprudence of law, poverty and rights.
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