Never mind the SC, Aadhaar is now in the people’s court

The Narendra Modi government’s attempts to bring back Aadhaar-based e-KYC authentication for mobile and banking services, via amendments to the Telegraph Act and the Prevention of Money Laundering Act, have come undone with the 16th Parliament now prorogued.

Although the Lok Sabha passed The Aadhaar (and other Laws) Amendments Bill, 2018, in the Winter Session, the Bill failed to make an appearance in the Rajya Sabha, even in an unusual Budget Session. In the past month-and-half, there has been much buzz about these amendments – how they flew in the face of the Supreme Court’s explicit prohibition on use of Aadhaar by private entities, including banks and mobile service providers; and how certain vested, private interests possibly knew of the Amendments well before the rest of the country (including the lawmakers).

In retrospect, this was not only expected of an administration which has single-mindedly, limitlessly, pursued the enforcement of Aadhaar as an enabler for authentication – it was also signalled by then Finance Minister Arun Jaitley rushing to assuage private entities within 24 hours of the Supreme Court’s Aadhaar judgment.

The judgment itself - its majority opinion at any rate - has been widely derided for its shockingly lackadaisical response to several significant concerns with the Aadhaar project.

The long list of deaths resulting due to exclusion from welfare benefits for want of Aadhaar or failure of Aadhaar-based authentication was disposed of with a token condolence message. The security of the Aadhaar ecosystem has been deemed acceptable on the basis of a PowerPoint presentation, while ignoring the reams of reports of data breaches and the Unique Identification Authority of India’s pretend-blindness regarding the same.

Most egregiously, the Union government’s repeated failure to communicate Supreme Court orders regarding the voluntary and limited use of Aadhaar has never been addressed.

The only conclusion is that the Supreme Court itself cares very little for compliance with its own judgments. It is therefore astonishing that the government has offered a semblance of compliance with one part of the SC judgment – a gazette notification dated Feb. 13 (a day after Parliament’s adjournment) amended the Prevention of Money Laundering (Maintenance of Records) Rules, 2005, to reflect that the Aadhaar number can no longer be demanded by banks or other financial companies.

Significantly, this is the first time the Union has toed the Supreme Court line with regard to Aadhaar. Even so, the judgment gives the government effectively a free hand, albeit with some slaps on the wrist, to maintain the status quo on Aadhaar particularly for subsidies and welfare schemes covered under Section 7 of the Aadhaar Act.

The voluntarily-mandatory danse macabre continues uninterrupted. Both the government and the UIDAI have been trigger-happy announcing other means of using Aadhaar for authentication – offline Aadhaar, QR code, virtual id, etc. This enthusiasm of course does not carry over to ensuring the swift passage of a data protection law, of which we have heard precious little since the judgment. The draft Data Protection Bill developed by the Justice B.N. Srikrishna Committee, which itself is hugely problematic, is yet to be presented to Parliament, and no further public consultation appears likely.

There is enough evidence in the public domain to question not just the implementation of the Aadhaar scheme, but its very intent as well as the proto-dictatorial functioning of the UIDAI. The constant drumming of spurious Aadhaar-related savings by Union ministers continues despite repeated denouncing. We are asked to believe that the Aadhaar ecosystem is secure simply on the strength of claims (and PowerPoint presentations) made by Mr. Ajay Bhushan Pandey or Mr. R.S. Sharma.

We need to demand that the government – whether this one or the one that follows – take a hard account of the Aadhaar project in total; that they look at not just the human cost (the mounting hunger deaths besides delay/denial of various subsidies) but also the economic cost – the savings claims made never take into account the government’s and UIDAI’s expense in managing and operating the Aadhaar project. As some researchers have pointed out, it is almost certain that the government, far from saving, is actually losing money on the Aadhaar project.

Such an auditing of the project is long overdue, but it is not merely about the numbers; the question begging to be asked is whether Indian taxpayers are willing to foot the bill for a project that is effectively killing off fellow citizens while endangering the lives and livelihoods of billions via endangering their data, collected coercively by a regime that cares not an iota about the security thereof.

Those defending the Aadhaar project often glibly state that any such exclusion is likely to affect “only 1%”. Are we trigger happy consigning 1% of India’s population – over 1.3 crore people – to extreme marginalisation, even death, to further a project that appears designed only to generate private profit through monetising our personal data?

Further, are we factoring in the “function creep” through which not possessing an Aadhaar number can today limit citizens’ choices in terms of meaningful livelihood and financial security, through cancelation of their PAN cards and denial of their Public Provident Fund savings?

The somewhat dichomotous Supreme Court judgment is a reflection of the schism in our society around the utility of Aadhaar. For many of us, the minority opinion of Justice D.Y. Chandrachud, which unambigiously declared the Aadhaar scheme unconstitutional, is a vindication of years of tedius truth-telling. More so, even the majority judgment authored by Justice A.K. Sikri curtailed the use of Aadhaar significantly.

Yet, ths majority judgment fails the poorest of the poor, those who were to benefit most from the Aadhaar project, while failing to address adequately the concerns around data security and mismanagement of the project.

The Supreme Court’s judgment may or may not be reviewed anytime soon, and the outcomes of such reviews also remain unpredictable. It therefore falls to us, the people of India, to demand an answer from the government as to the actual cost of the Aadhaar project and whether it is socially, economically, politically wise to continue the project.

Not many believe that support for the Aadhaar project has electoral consequence, but the results of the Chhattisgarh Assembly Elections as well as the latest notification from the government amending the PMLA rules suggest that there is some electoral calculation. Aadhaar may appear to have passed muster in the Supreme Court, but it still remains sub judice in the people’s court.

(Godavar is a member of the ‘Rethink Aadhaar collective’ which has been working to widen the conversation around the Aadhaar project and its impact on the lives and livelihood of Indians.)