#Rethink Aadhaar: An year after SC’s Aadhaar judgment, we need to keep talking about Aadhaar

It is almost a year since the Supreme Court’s Constitution Bench handed down the Aadhaar verdict, with the majority finding the project (and the 2016 Aadhaar Act) constitutional, but seemingly circumscribing its limits. In reaching their judgment, the majority of the judges accepted the government’s promise to bring into force a long-awaited data protection law - not that such a law would redeem the project’s failings. Even as we continue to push for a strong data protection law, one year on from the judgment, now is a good time to reassess why we still need to agitate about Aadhaar.

When the project was launched in 2009, the Aadhaar number was marketed as providing the most needy a unique identity, as the ultimate silver bullet that would fix a broken welfare system in which, we were constantly reminded, “out of one rupee spent by the government for welfare of the downtrodden, only 15 paise thereof actually reaches the needy”.

And despite many voices of warning from various quarters about the Aadhaar project’s obvious potential for constructing a 360-degree view of citizens via linking databases, the government kept insisting there is nothing to worry about, and that data and privacy protection is woven into the Aadhaar Act.

Legal loopholes

Propaganda works in mysterious ways — at the altar of Aadhaar, anything that seems to defy logic (data protected by 13-foot walls, for instance) can be explained away, or solved by throwing yet more technology into the mix.

During the Aadhaar hearings, the much-touted “savings” claims were shown to be based on false premises or unrealistic estimations: the majority judgement offered no comment on this, nor has repeating these claims in Parliament been challenged through privilege motions. The exclusionary impact of biometric authentication, a thoroughly destabilising technology, was demonstrated, documented through painstakingly gathered affidavits from across India: the majority dismissed this as being a contested fact.

The sanctity of the Aadhaar database was challenged (absurdly, the UIDAI admitted in court that no officials verified the information submitted by people at enrollment): the majority judgement appeared satisfied by nothing more than a PowerPoint presentation. The possibility of using the Aadhaar architecture for surveillance was confirmed not just by independent experts, but even the UIDAI’s own expert: again, not addressed.

The Court’s rubber-stamping the use of the Aadhaar number for subsidies and for linking to PAN as well as filing Income Tax returns effectively brought all citizens across the income spectrum under the Aadhaar blanket. The government isn’t done yet — the project continues to march on, expanding even beyond absurdities, mostly in violation of the limits set by the Supreme Court.

The illusion of choice

The illusion of choice is one such example. You get the impression that when the government gained wind that “informed choice” was the new standard it decided to repeat it ad nauseum, render it meaningless through overuse. For instance, the Aadhaar Amendments Act, enacted in July this year and now pending scrutiny in the Supreme Court, gives children who have been enrolled into the Aadhaar project based on parental consent the option to ‘opt out’.

But they must do this within a short six-month window once they turn 18. Never mind that the requirement of Aadhaar continues to be worked into the system for a number of entitlements and even non-subsidised schemes and services for adults as well.

Second, if the trail of transactions generated by each Aadhaar authentication being communicated back to the Central Identities Data Repository (CIDR) enabled the risk of surveillance, the Amendments Act introduces virtual identities and offline verification as alternatives. One must ask if the pivot to offline systems is an admission that biometric authentication is no longer reliable in uniquely identifying an individual.

In the absence of trust, or even rational, transparent disclosure, we are left to presume our own answers. Again, thanks to the Amendments Act, the UIDAI wields even more power with even less responsibility. The UIDAI, which has never appointed a Chief Information Security Officer, now has the power to issue directions to “entities in its ecosystem” and impose civil penalties.

Perpetuating older rent-seeking patterns

The theatre of the absurd around Aadhaar should not trick us into forgetting the dangers of Aadhaar: both for what it does, and for what it signals. The most important of these is, of course, that people continue to die due to not possessing an Aadhaar number.

Meanwhile, governments continue to push for new technology without a shred of public consultation. Obviously ungrateful about how all the latest technology was supposed to upgrade their lives, people find themselves locked out of their entitlements, because they are not able to link their Aadhaar cards to various databases.

The latest tragic victim is a baby sold at birth, because her mother's own treatment and survival were at risk with the family crippled by poverty due to Aadhaar-related exclusion from entitlements. The mother did not survive. That this does not shock more people is troubling though unsurprising. Poverty is a political choice, and the choice to put more hurdles in people's way is nothing but perverse.

What the government’s continued love affair with Aadhaar signals is its commitment to adopt new technology unthinkingly and thus perpetuate older rent-seeking patterns.

Links between technology and authoritarians

People are no longer important: instead our government goes on to sell our data to a panoply of companies. The links between technology and authoritarians are not new — in 2012, documents exposed IBM’s pivotal role in six phases of the Holocaust: identification, expulsion from society, confiscation, ghettoization, deportation, and even extermination.

Although Aadhaar is not a proof of citizenship (per Section 9 of the Aadhaar Act), the biometrics of those not included in the National Register of Citizens in Assam will apparently be stored in order to prevent them from enrolling for Aadhaar elsewhere in India: a move troublingly reminiscent of golden stars sewed onto blazers.

Despite the function creep of Aadhaar across public and private subsidies, programmes, and services, the distance traversed by the public movement against Aadhaar is important: starting from 2010-11, when the pioneers of the resistance had to convince people of the dangers of sharing data sans protection and why we should worry about a private company wanting to store our fingerprints for posterity (and profit), we are now in a world where surveillance has become as ubiquitous as problem as the climate crisis (if not as intractable).

One year from the Supreme Court's Aadhaar judgment, we have to be careful we don’t miss the woods — the nuances of the fight against Aadhaar — for the proverbial trees. The fight is not (just) against Aadhaar — it is about power and agency, and retaining the full complexity of your humanness at a time when politics is focused on reducing you to a single category, an anonymous data point, a completely transparent subject.

The danger with deploying big data is that, by knowing too much about you, it reduces you to too little.

While a data protection law — particularly one rooted in the rhetoric of “furthering the data economy” — cannot redeem the Aadhaar project’s failings, its passage is important. What we are seeing with the progress of data protection legislation mirrors the scrutiny of Aadhaar in the courts — too little moving too slow and delivered too late, hindered at every step by vested (not to say corporate) interests. The government has amended the Aadhaar Act, talked about a policy for community data and non-personal data, even sold off vehicle registration data — all without even a basic framework to protect our data.

Surely anyone watching the Supreme Court today can’t help but yearn for the relatively heady days of 2017 and 2018, with the highlight being the affirmation of the right to privacy in all its facets including the right to sexual expression.

Today we are witnessing a Supreme Court in ignominy, expediting the NRC, closing its eyes to egregious human rights abuses in Kashmir, and most recently directing the question of whether social media accounts should be linked to Aadhaar back to the government. What would it take for the court to reiterate its own judgment, to stand for the most basic and radical standards in the Constitution?

We need to realize that Aadhaar was never only about empowering people but instead about reducing nuance to utter illegibility while pushing inexorably towards extreme legibility, and towards consolidation of power.

Even as an upcoming DNA bill envisages creating a central database for DNA data, and as Delhi government begins installing CCTV cameras all over the city including schools, citizens must mount a constant, unrelenting vigilance.

Scott Skinner-Thompson introduces the idea of a performative expressive privacy against an ever surveilling society. We’re seeing instances of it in India — last week, Adivasi residents of Pathalgarhi villages in Jharkhand took a leaf out of this book when they publicly rejected Aadhaar, on apprehensions that it eases exploitation of Adivasis and their resources by outsiders.

The unique identification system equates Adivasis with the ‘aam aadmi’ (common man), they said. We too need to remind those managing the Aadhaar project that we who are common aren't so commonplace as to be reduced to a statistic.

(Ria Singh Sawhney is an advocate while Godavar is a writer-activist. They are both members of the Rethink Aadhaar campaign which is seeking to expand the conversation around the Aadhaar project. Ria also worked on the challenge to the Aadhaar Amendments Act and is currently appearing for the Internet Freedom Foundation in the WhatsApp traceability case)