Why the Aadhaar Judgment is Flawed: A Reading List Examining the Supreme Court Verdict

The Aadhaar judgment fails to address problems of social exclusion that Aadhaar exacerbated.

A fundamental problem in contemporary India is that laws have not kept up with technology. Aadhaar was imagined to bridge the gap between technology and social welfare. As the debate over Aadhaar unfolded over the years, several complex legal questions emerged concerning fundamental and constitutionally guaranteed rights: privacy and data protection were central concerns, along with mass surveillance. On 26 September 2018, a five-judge bench of the Supreme Court ruled that the Aadhaar project was not unconstitutional.

With this reading list, we analyse the court’s judgment on Aadhaar and the implications it will have on our fundamental rights and our ability to access welfare.

1) Why Do We Need Aadhaar?

The benefits of the Aadhaar programme need to be weighed against its drawbacks. Primarily, it was supposed to facilitate citizens’ access to welfare by encoding a unique identity from biometric information, a database of which the government maintains. Essentially, Aadhaar espouses a biological system of identification for access to welfare, that is, biological citizenship. Pramod K Nayar argues that this “assumes that social and political problems are resolvable through technology,” when in fact, the root of the problems lie elsewhere, most commonly, in faulty infrastructure. The mere insertion of a technological identification system cannot make up for the woeful lack of infrastructure, corruption, etc.

“Biological citizenship also works towards another consequence. First, it minimises the body into a set of numbers, thus erasing the complicated nature of identity itself. Second, this same set of numbers then offers the potential, and possibility, of expansion, of being used for various purposes. The UIDAI, remember, is supposed to be multipurpose.”

2) Why Does Aadhaar Increase India’s Problem of Exclusion?

How much exclusion is real exclusion? The Supreme Court’s judgment,  adhering to government-furnished numbers asserted that 97.6% of the population was now biometrically verified via Aadhaar, and thus argued that shelving the Aadhaar project now would lead to neglecting the benefits currently provided to almost the entire populace. On this basis, an outcome in favour of petitioners against Aadhaar was therefore untenable.  

However, as Reetika Khera writes, the claimed benefits of eliminating corruption and ensuring welfare access to all do not stand up to scrutiny as government-touted numbers of apparent savings are in fact legal dues being denied to the recipients. Focusing on the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), public distribution systems (PDS) and social security pensions (SSP), Khera shows that a rushed implementation without understanding the problems at hand has led to further pain for the disadvantaged, especially when prevalent systems of welfare disbursement were showing increasing efficiency.

“Less than 5% of MGNREGA work in government records was not confirmed by respondents. As with the PDS, the decline in wage corruption predates Aadhaar-integration. This suggests that contrary to government rhetoric, there are other methods of reducing corruption in these programmes. In MGNREGA, the dramatic reduction in wage corruption is because of separation of the implementing agency (like the panchayat) and the payment agency (banks and post offices) . Even with payments into accounts, wage corruption can continue. It can take three forms: extortion (forcibly taking wages once labourers have withdrawn it from their account), collusion (workers allow corrupt functionaries “use” their job card and account to inflate work on muster rolls and sharing embezzled funds with them) and deception (operating the workers’ account without their knowledge).”

The introduction of Aadhaar-Based Biometric Authentication (ABBA), was meant to enhance efficiency. But research by Jean Drèze, Nazar Khalid, Reetika Khera, and Anmol Somanchi shows that ABBA has compounded problems of access. Based on their studies, no Aadhaar card means no rations, as has been the case in rural Jharkhand. Further, the point-of-sales (PoS) machine—a simple, hand-held device that relies upon internet connectivity—which is crucial for ABBA to function, is prone to malfunctions, despite the presence of fail-safes. A non-functioning PoS machine means no rations. A steady internet connection too is a rarity. At least half of the households surveyed by the authors experienced a PoS-related issue.  Rather than ensure food security, the Aadhaar system has become an active obstacle.

“The imposition of ABBA on the PDS in Jharkhand seems to be a case of “pain without gain.” On the one hand, the system has led to serious exclusion problems (particularly for vulnerable groups such as widows, the elderly and manual workers) as well as higher transaction costs. On the other, it has failed to reduce quantity fraud, which is the main form of PDS corruption in Jharkhand. Nor has it helped to address other critical shortcomings of the PDS in Jharkhand, such as the problem of missing names in ration cards, the identification of Antyodaya households, or the arbitrary power of private dealers.”

3) Does the Aadhaar Judgment Solve the Problem of Exclusion?

The problem of exclusion exists because Aadhaar was made mandatory for access to welfare services. According to Section 7 of the Aadhaar Act, any service that uses funds from the Consolidated Fund of India still needs Aadhaar, mandatorily. The Supreme Court judgment has not done away with Section 7 which means that problems related to exclusion are likely to continue. Section 7 also allows the government to use Aadhaar information for “the purpose of establishing the identity of an individual”. This reinforces the concerns about the Aadhaar programme being an instrument for mass surveillance at its core.

“Reports from Gujarat, Jharkhand, Andhra Pradesh and other states describe the exclusion of genuine beneficiaries because of problems with the Aadhaar records and authentication issues, besides technological and infrastructural failures. This experience ought to have taught the government that the mere adoption of “technology” is not a panacea for corruption and inefficiency in the delivery of services, but is a sure way of excluding those who are socio-economically the most vulnerable.”

4) Have Data Security Problems Been Addressed?

Questions about the security of biometric data have been persistent as the Aadhaar database suffered one data breach after another. The only section of the Aadhaar Act that the Supreme Court struck down in its judgment was Section 57, which states that: “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect.”

While third parties and private companies can no longer demand such information, the fate of the already collected data is still uncertain. Additionally, since Aadhaar must still be mandatorily linked with PAN and income tax, the government is now the sole legal repository of all Aadhaar-related biometric information.

“The government has been and continues to push Aadhaar as a miracle cure that would curb leakages and bring in transparency while excluding fake beneficiaries and saving “huge sums of public money.” What it does not project is that the Aadhaar scheme involves the collection and control of big data, enabling “dataveillance”.

Shweta Agrawal, Subhashis Banerjee and Subodh Sharma break down the technological aspects of the Aadhaar debate: generally,  access to a digital service demands two kinds of information–identity and authentication.  Identity may or may not be public, but authentication is necessarily private. Aadhaar collapses these two dimensions, which consequently allows individuals to be identified and authenticated without consent via their Aadhaar data. The authors also provide a thorough breakdown of all the ways in which Aadhaar data is precarious:

Correlation of identities across domains: It may become possible to track an individual’s activities across multiple domains of service (AUAs) using their global Aadhaar IDs which are valid across these domains. This would lead to identification without consent.

Identity theft: This may happen through leakage of biometric and demographic data, either from the central repository, or from a PoS or enrolment device.

Identification without consent using Aadhaar data: There may be unauthorised use of biometrics to illegally identify people. Such violations may include identifying people by inappropriate matching of fingerprint or iris scans or facial photographs stored in the Aadhaar database, or using the demographic data to identify people without their consent and beyond legal provisions.

Illegal tracking of individuals: Individuals may be tracked or put under surveillance without proper authorisation or legal sanction using the authentication and identification records and trails in the Aadhaar database, or in one or more AUA’s databases. Such records will typically also contain information on the precise location, time, and context of the authentication or identification and the services availed.

5) Is the Aadhaar Act Unconstitutional?

The passage of the Aadhaar Bill, 2016, as a money bill was inarguably to bypass scrutiny from the Rajya sabha, raising questions of its constitutional validity. An editorial explains:

"The decision is faulty not only by the spirit of the Constitution, it is even so by the letter of the law. Article 110(2), which shall form the basis for the speaker arriving at a decision on whether a bill is a money bill or not, was clearly overlooked by the current Speaker Sumitra Mahajan. To paraphrase, the provision holds that a bill shall not be deemed to be a money bill by reason only that it provides for augmenting revenue collection or disbursal of money or services. This, incidentally, is the argument raised by the government too, that Aadhaar will save money."

This view was backed by Justice D Y Chandrachaud—the sole dissenting judge—who called the passage of the Aadhaar Act in Parliament a “fraud on the Constitution”, reiterating that Sumitra Mahajan’s decision to introduce it as a money bill be subject to judicial review. While Justice Chandrachaud conceded that living without Aadhaar was now impossible, the fears of invasion of privacy, all-pervasive state control and exclusion were issues that the judgment refused to settle.

 

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