Three times – on September 23, 2013; March 24, 2014; and on March 16, 2015 – the Supreme Court has ordered that it is not mandatory for Indians to enrol for an Aadhar unique identity number. These rulings should not have been necessary, since participation in the Unique Identification project was being promoted as being purely voluntary in the first place. Yet, after the 2013 order, the Finance Ministry, the Unique Identification Authority of India that administers the Aadhar programme and other organisations pleaded with the court to change its order. The court was not moved.
The government, the UIDAI, the states and the agencies carried on regardless, threatening people that they would be excluded from services if they did not enrol. That is why there are three orders, one for each year since 2013, directing time after time that no one should be compelled to enrol for an Aadhaar card and that no one should be denied any services simply because they are not on the UID database. But the coercion has not stopped. The agencies demanding Aadhaar numbers from people seeking services would simply say that while it was true that the court had said the UID card should not be mandatory, they had not received instructions to the contrary from their superiors. They would insist that their computer systems could not accept applications unless a UID number had been filled in.
Once again, on August 11, the Supreme Court has ruled that the Adhaar number is not mandatory. This time, the context was different. The court was aware that its earlier orders had frequently been violated. It also had affidavits from those who had been denied what was due to them because they had not enrolled on the database, or they had enrolled after they were threatened with exclusion.
Right to privacy
More significantly, the Attorney General told the court that the government did not believe that Indians had a fundamental right to privacy, even though this concerns have been raised by several parties, including the Supreme Court, about who would have access to the data collected by the Unique Identification Authority of India. The Attorney General quoted two decisions in support of his proposition – from 1954 and 1963. Those opposing his argument contended that these decisions had been overtaken by the constitutional jurisprudence that had since evolved. But doubts having been raised by the Attorney General, the court was inclined to let the matter be resolved by a Constitution bench.
The judges were aware that it is difficult to anticipate when a Constitution bench would be formed. The cases before them had introduced them to the seriousness of the challenges to the UID project, including the fact that a parliamentary standing committee had rejected a bill that would govern the programme and asked for the legislation to be sent back to the drawing board; that the project had defied this parliamentary rejection and carried on without a law; the unrestrained outsourcing of the project and its consequences for personal security; the national security implications of databasing a whole population, as also of the involvement of companies that are reputed to being close to the Central Intelligence Agency and to foreign governments. This order of the court was expressly to serve the "balance of interest", and to protect citizens from having their rights irremediably lost.
The interim order is, therefore, categorical: One, “it is not mandatory for a citizen to obtain an Aadhaar card”. Two, “the production of an Aadhaar card will not be a condition for obtaining any benefits otherwise due to a citizen”. Three, “the UID number or the Aadhaar card will not be used by the respondents (which includes the UIDAI and the various departments of the government including the Census Commissioner and the Election Commission, as also state governments) for any purpose other than the public distribution scheme and in particular for the purpose of distributing foodgrains and cooking fuel, such as kerosene”. Finally, the “Aadhaar card may also be used for the purpose of the LPG distribution scheme”.
This exception for the public distribution system and cooking fuel was made at the behest of the Attorney General. He said 91% of the population had already been enrolled on the UID database and that it was useful in reducing leakages in service delivery.
Both are contestable claims. The government’s affidavit to the court says that as of March 31, UID numbers have been issued to 80.46 crore residents. The population of India is in the vicinity of 128 crore. In fact, the numbers on the database have grown because people were threatened with denial of service if they did not participate in the programme.
In relation to the Mahatma Gandhi National Rural Employment Guarantee scheme, the affidavit asserts that asking people seeking work under the scheme to show their Aadhaar cards had ensured the deletion of a large number of "bogus and ghost workers" from the MGNREGA database. It cites the instance of Andhra Pradesh and Telengana. These figures are revealing, but do not bear out the government's claims. The table says that the total number of bogus workers is 12,78, 724 ‒ or 4% of the total workers. Of these, 273,933 workers were bogus because they were dead, while 809,275 had migrated to other places.
The Attorney General argued that Aadhaar was a beneficent project because it gave an identity to many among the poor who did not have any proof of identity. Yet, the government’s affidavit says that so far only 213,800 of the 80.46 crore people on the database had been enrolled under the introducer system, which was meant for those who could not produce any supporting documents.
Though the judges agreed to allow the government to use Aadhar for the distribution of fuel and foodgrains, they had expressed their anxiety about how the rights of the people who are on the PDS system will be protected till the Constitution bench makes its decision on the programme. When the Attorney General began to list out further areas in which Aadhar may be used – NREGA, scholarships – the court refused to expand the number of categories.
The fourth clause in the court’s interim order unequivocally prohibits “the information about an individual obtained by the UIDAI while issuing an Aadhaar card” being “used for any other purpose” except foodgrain and fuel distribution. There is one other exception: the court has said that the information with the UIDAI may be used “as directed by a court for the purpose of criminal investigation”. This is contrary to an order its order of March 24, 2014, where the bench had restrained the UIDAI from sharing its biometric data base with any agency. It is not clear why the court changed its mind.
However, this means is that the UIDAI database cannot be used to clean up other databases; to "seed" the number to crosscheck existing data, as was being done by the Election Commission, the National Population Register and banks; or to authenticate the identities of people. If this had been allowed to carry on, it would make it difficult to recover from the harms apprehended in the challenges to the project.
The UIDAI actually has a "data sharing policy" that they advertise, which provides meta data on enrolments on its website, including details about gender and mobile phone numbers. It has also been promoting the creation of apps that use the Aadhaar number in a variety of situations. These uses of personal information, and the idea of data as property, and the security risks – personal and national – involved is proscribed by the interim order and will have to wait for the decision of the Constitution bench.
The court has mandated the government to “give wide publicity in the electronic and print media including radio and television networks” that enrollment in the programme is not mandatory. There has been no sign of compliance with this order. Is this an indication that the government intends to continue flouting the orders of the court, and do as it pleases?