The state of Aadhaar on the 1st day of final SC hearings
Today the landmark Aadhaar hearings in the Supreme Court have started. It is germane to examine how we got here; what is at stake; and what we, civil society on behalf of current and future citizens of India, have achieved.
How did we get here aka How UIDAI’s Powers Grew Leaps and Bounds, All Without Legislative Backing!
The Aadhaar attack on the Indian constitution and democracy started way back in 2009. Unique Identification Authority of India (UIDAI) was constituted for the purpose of issuing unique identification numbers by the Central Government. It was decided that the UIDAI will be executive in nature and function under the Planning Commission. Nandan M. Nilekani was appointed as the first chairman of this Authority. Nandan Nilekani, operating almost like a one man army, clearly knew that such a biometric UID programme if allowed to operate unimpeded would face resistance. Thus was born this strategic awareness that Aadhaar should skirt past govt and civil society checks and balances and create a fait accompli, or “too big to fail” movement and thus settle its position as a done deal when it would meet resistance. To his credit, Nilekani has been candid in standing by this horrendous start-up culture and mechanism of operation applied to public policy:
“We felt speed was strategic. Doing and scaling things quickly was critical. If you move very quickly it doesn’t give opposition the time to consolidate,” says Nilekani.
The first senior staff that started on the programme were Ram Sewak Sharma and Ganga K. Both ensured that UIDAI had, within weeks, the necessary powers to proceed and would not be held hostage to the clearance regime.
Within a short time, the Aadhaar program accelerated and achieved 100 million UIDs by November 2011 and 200 million by February 2012, and the programme continued without legal mandate for eight years until 2016. Once again this was a well thought out strategy.
In 2011, the UPA government sought to give legal backing to the Aadhaar project, and introduced the National Identification Authority of India Bill, 2010 (NIAI Bill), which was referred by the Lok Sabha Speaker to a Standing Committee for examination and a report thereafter. However, the Parliamentary Standing Committee on Finance rejected the NIAI bill in its current form on the grounds of the project’s high cost, as well as concerns regarding national security, privacy and duplication of the National Population Register’s (NPR) activities. It gave recommendations, including the requirement for an over arching privacy legislation and data protection law before the continuance of the scheme, and expressed concern about private agencies being contracted for the collection of sensitive information.
If the government was serious about Parliamentary procedures, it would have stopped the current program and worked on the serious recommendations made by the Standing Committee, and we would not have been in the mess that we are in today. Instead, the government accelerated the pace, and towards the end of 2012, there were frenzied announcements that governments would be demanding the UID number for all manner of services. The central government said they would be rolling it out in the PDS, NREGA, pensions and other systems & state governments were following suit.
Nilekani had converted what was initially a disadvantage — that UIDAI wasn’t authorised by Parliament — into a sweet spot: It could bypass the procedures public projects are subject to, and at other times cite its government mandate to convince sceptical users and partners.
Where you stand depends on where you sit aka Politicians Stand For Nothing
The Aadhaar programme was started by the UPA government without Parliamentary approval, merely as Executive orders, and the entire programme was bitterly opposed by the BJP until 2014, then the leader of the opposition, including then CM of Gujarat, Narendra Modi.
In 2010, at a function in New Delhi, Smriti Irani, had said, “The reality is that the National Identification Authority of India Bill, 2010, which gives sanction to this particular card was rejected by the standing committee on finance.”
In 2012, BJP’s national spokesperson Meenakshi Lekhi had slammed Aadhaar as a “fraud” programme and demanded a probe.
In 2014, just before NDA won the general elections, BJP went on record via its National General Secretary Ananth Kumar with the claim that “NDA will scrap Aadhaar if it gets mandate”
Of course the reality was quite different. Instead of scrapping the Aadhaar programme, ordering probes and standing by its own statements, the NDA led government viciously expanded the use of Aadhaar across India, starting with an assault on Parliamentary procedure by passing the Aadhaar Act as a Money Bill. While the Aadhaar Act clearly keeps Aadhaar use optional, regulations and notifications have made Aadhaar usage mandatory and thus coerced citizens into becoming part of the program, while continuing to claim in public and even in submissions made to the Supreme Court that people have voluntarily gotten themselves enrolled.
Civil society and the Supreme Court stepped in when legislative procedures failed
While the Union Of India (UoI) unleashed its draconian power on hapless citizens, civil society has been challenging the Aadhaar program almost from the start. Some of the foremost voices to be raised against Aadhaar were Usha Ramanathan, S G Vombatkere, Gopal Krishna among others.
On September 28, 2010, a statement issued by 17 eminent persons including Justice V.R. Krishna Iyer, Romila Thapar, S.R. Sankaran, Upendra Baxi, Bezwada Wilson, Justice A.P. Shah and Aruna Roy asked the government to pause and do what has to be done as a prelude to a project with such potential consequences.
The coercion to enroll under Aadhaar provoked Justice K.S. Puttaswami to file a petition in the Supreme Court. In the meantime, petitions had been filed in the high courts of Bombay and Madras and these too were moved to the Supreme Court. On September 23, 2013, the court directed that no one should be denied any service only because they did not have an ‘Aadhaar card’. In October 2013, more petitions were filed by social activists including Aruna Roy, Nikhil Dey, Bezwada Wilson, retired defence personnel including Colonel Mathew, Major General Sudhir Vombatkere and Major General Jatar and persons from the world of science and technology and the Beghar Foundation in Delhi.
Subsequently, the Supreme Court continued passing order after order between 2013 and 2017 against the UoI keeping Aadhaar strictly optional. When many mandatory linkage of Aadhaar was challenged, the courts again ruled in favour of petitioners keeping Aadhaar usage voluntary for PDS, scholarships and PAN. Finally on 18th July, 2017, a 5-member constitution bench presided over by CJI J.S. Khehar decided to constitute a nine-judge bench to determine whether we enjoy a right to privacy as a fundamental right under the Constitution of India.
The rise and rise of a mass movement across India
While a smaller set of civil society representatives had originally understood the perils of the Aadhaar program and were voicing their concerns via articles, lectures, discussions and by petitioning the courts, what is most striking is how the opposition to Aadhaar has intensely scaled up in the last one year, since early 2017.
What started out as resistance in small pockets, has truly become a gigantic people’s movement, cutting across class, societal status, political affiliations or location. People have organized themselves into non-partisan groups made up of petitioners, activists, lawyers, security & data researchers, and concerned citizens. Across India, more and more voices are being raised by civil society groups especially led by Right To Food Campaign, individual affected citizens via affidavits filed in court, fact-finding missions with reports, on-ground protests, signature petitions, letters written to service providers & MPs to stop the Aadhaar program on behalf of citizens and campaigns to inform people about the true nature of Aadhaar.
More and more voices are being raised online via new facebook groups, websites, publications, twitter handles, hashtags to create an amazingly clued in network of citizen journalism who quickly come together to distribute news of the latest security failings of UIDAI, document cases of denial and distress, disseminate information, facts & opinions about Aadhaar in particular and biometric UIDs in general. This set of ferocious voices directly from concerned citizens; who for the best part don’t even know each other and have never met, who are spending their own time, money and energy, and who have researched Aadhaar and found it severely lacking and distressful; have flummoxed the establishment and scared it so tremendously that they have been reduced to calling this a concerted campaign. This is not new, dismissive terms like these have been used continuously by stalwarts like Nandan Nilekani (2015: Concerns over Aadhaar security ‘misinformation campaign’), Ram Sewak Sharma (2017, There has been no Aadhaar ‘data leak’), Nandan Nilekani yet again (2018, There’s an orchestrated campaign to malign Aadhaar), RS Sharma (2018, TRAI Chairman slams Aadhaar database breach report, calls it ‘orchestrated campaign’), etc.
It is also heartening to see main stream media cover the Aadhaar issues across the spectrum thus playing its expected role as a disseminator of information to masses who are not online and do not benefit from online citizen journalism and activism:
- Coverage of the massive adverse impact it has had on welfare programs across India, and raking the govt over coals for the deaths that have resulted from denial of rations
- Coverage of security concerns, data leaks, cases of fraud, impersonation, cheating, due to Aadhaar
- Stepping finally into the realm investigative journalism, like the shockingly easy data breach reported by The Chandigarh Tribune, a report which shook India and resulted in UIDAI filing an FIR against the reported, leading to huge backlash
- International media has started covering Aadhaar, and well known free-speech and privacy advocates like Edward Snowden have cautioned people about Aadhaar
The pushbacks from the Supreme Court and citizens have forced the UoI to continually move its so called “last dates” for linkage, i.e. seeding of citizen’s Aadhaar number into various other databases across the country, and backtrack on its gazette notifications, to the delight of citizens opposed to Aadhaar.
What the latest?
That brings us to where we are at present and what is at stake. At long last, the Supreme Court has started hearing the Aadhaar petitions starting today, and the opening statements made on behalf of the petitioners today beautifully expresses what is truely at stake:
- No democratic society has adopted a programme that is similar in its command and sweep.
- The government seeks to tether every resident of India to an electronic leash. Electronic records will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Several state governments have started using the Aadhaar platform to build profiles of residents that is reminiscent of totalitarian regimes
- At its core, Aadhaar alters the relationship between the citizen and the State. It diminishes the status of the citizen. Rights freely exercised, liberties freely enjoyed, entitlements granted by the Constitution and laws are all made conditional.
- The State is empowered with a ‘switch’ by which it can cause the civil death of an individual.
The hearings in the Supreme Court will probably continue for the next 4 to 6 weeks, with arguments being made by petitioners and UoI, finally resulting in a judgement that will determine once and for all, the future of this disastrous coercive biometric UID program undertaken by 2 governments over the last decade. This is history being made, and as concerned citizens we should all stay tuned to what is happening in court. It is not bombastic to say that the outcome in the Indian Supreme Court will set the stage for similar coercive biometric UID programs across the world. The world is looking at us, will the Indian Supreme Court do the right thing?
