The Supreme Court’s order on Tuesday, indefinitely extending the deadline for linking Aadhaar to banks and mobile phones, comes as a relief to those who have been questioning the very basis of the government’s unique identity project, but it is only a partial relief. That is because the court only put off the deadline in some cases, such as banking and phones, while allowing the government to keep Aadhaar mandatory for those whom it is causing the most disruption: the poor and the needy.

In its order on Tuesday, the government said that the earlier deadline of March 31 after which Aadhaar would be mandatory for a host of services would now be extended until “the matter is finally heard and the judgment is pronounced”. But this extension did not cover all the avenues through which the government has tried to force people to enrol and link their unique identities.

Phone SIMs and banks

Instead, it focused on the ones that have received the most attention from the media over the last few months: The mandate to have every bank account, PAN card and phone SIM linked to an Aadhaar number. As of Tuesday, those who have not already done so can wait until after the Supreme Court has delivered its judgment before needing to take that call.

In the immediate aftermath of the order being pronounced, the decision seemed like a major relief. The government has, after all, been pushing the linking of Aadhaar to every one of its services and reminding private companies to do so as well. Most people with mobile phones in the country are likely to by now have received text messages asking them to link their SIM cards to Aadhaar. The same goes for those with bank accounts.

This, despite the fact that the Supreme Court had earlier put the deadline only for March 31, with the judges admitting that they too had been at the receiving end of those sort of messages. Following the decision, it seemed as if this behaviour of the government and the companies, seen as violating the fundamental right to privacy by those petitioning against Aadhaar, will come to a stop until a final, legal decision has been taken regarding the legality of the unique identity.

Section 7

But it soon became clear that the Supreme Court’s order was not all-encompassing, with no reason given. As the court records it, a query was made regarding the extension of the deadlines for linking. In response, KK Venugopal, the Attorney General, told the court it could think of extending the deadlines, but asked that the “benefits, subsidies and services” covered under section 7 of the Aadhaar Act be undisturbed. “We accept the same,” the order said.

It goes on to add:

“Having heard learned counsel for the parties, we accept the submission made by the learned Attorney General. Subject to that, we direct that the interim order passed on 15.12.2017 shall stand extended till the matter is finally heard and the judgment is pronounced.”

In simpler words, the court extended the deadline for most things in which Aadhaar linking is necessary, except for things under Section 7 of the Aadhaar Act, which covers anything that the government considers a “subsidy, benefit or service” where payment comes from the state. In effect this covers a huge number of the 139 or so services that the government has now made Aadhaar mandatory for, including the public distribution system, old age pensions, scholarships for students, access to public healthcare and much more. In many cases, those are the schemes that have proven to have beneficiaries most vulnerable to the Aadhaar project, whether in terms of failed biometric authentication leading to denied rations or already vulnerable groups refusing to provide Aadhaar out of fear for how it will be used.

Poor and needy

So although the court’s decision did end up providing relief to a large number of people, that succour comes with a class bias: Since only those who are not reliant on crucial subsidies like publicly distributed foodgrains or mid-day meals, will have the freedom to not link Aadhaar before the court has decided whether it is constitutional or not.

“The Interim Order issued by the Supreme Court today has come as a grave disappointment, given the large scale exclusion and cases of starvation deaths reported due to Aadhaar, the biometrics-linked resident ID, from the poorest districts of the country,” said a statement put out by Rethink Aadhaar, a collective of activists opposed to the project. “Today’s order has failed to provide these most vulnerable citizens of the country little protection or relief from disruption of the legal right and access to even basic social services.”

The Supreme Court order does not spell out the reasons for this bias against the nation’s neediest. Technically, the government has one excuse to hide behind. It can claim that it has told departments in the past that lack of Aadhaar should not be the reason for denial of crucial services, like giving foodgrains or admitting someone to a hospital. Yet because Aadhaar is otherwise mandatory, this order has rarely been followed, and instead, authorities across the country have embraced the idea of reducing the number of beneficiaries of subsidies in order to claim that they have saved public money.

Class bias

The government’s technicality then, is nothing but a fig leaf, one that has been held in place by the Supreme Court. While the better-off now do not have to be bothered by having to link at least until the court’s judgment on the matter, those who have had the biggest problems with the scheme – indeed, the ones most affected by it – get no relief.

“This significantly diminishes the relief brought by today’s order, as a vast number of residents will still effectively be forced to enrol for Aadhaar even before the apex court has made a determination as to its constitutional validity,” said a statement from the Software Freedom Law Centre.

There are some bittersweet elements to this. That the Supreme Court extended the deadlines at all, and moreover until after the case is decided, suggests it recognises the gravity of the concerns here. One can argue that it should have done this in the first place, noted that there are serious constitutional and fundamental questions about Aadhaar, and put a stay on the project and altered the Act. But even if belated, this is an admission that there are real concerns and the government cannot simply go around forcing people to sign up and link. Additionally, without the phone linking, the government will end up having a problem, since in many places where biometric authentication has proven to fail, the authorities were hoping a one-time password sent to the phone could be a replacement.

Activists from RethinkAadhaar have said they intend to challenge the order’s bias, and insist that all services should be kept away from mandatory deadlines. The case is meanwhile being heard day-to-day in the Supreme Court, and so there will be opportunities to bring up the somewhat arbitrary nature of this order. For the moment, however, the relief from the Court on Tuesday for those opposed to Aadhaar has been bittersweet, with more of the former than the latter.