As the Supreme Court hears petitions contending that Aadhaar violates the fundamental rights of Indians, it’s clear that much of the broad edifice created by the government in defence of the national identity project rests on shaky ground. The 12-digit biometric ID was supposed to be voluntary, although in a huge swathe of circumstances it clearly was not. The legislation for it was passed much after millions had already been enrolled. It was supposed to be secure but has instead aided the leaking of massive amounts of government data. It was meant to make welfare delivery more efficient, but in many cases has made people’s lives harder. And, on Wednesday, the government admitted that it had been lying about another aspect too: the Supreme Court had never made it mandatory for all phone SIM cards to be linked to individual Aadhaar numbers.

Justice DY Chandrachud, one of the five judges on the Constitution Bench hearing the case, spelled it out for Rakesh Dwivedi, counsel for the Unique Identification Authority of India, which runs the Aadhaar project. “In fact there was no such direction from the Supreme Court, but you took it and used it as tool to make Aadhaar mandatory for mobile users,” Chandrachud said, according to PTI.

To this, Dwivedi admitted that SIM-Aadhaar linking had commenced on the basis of the recommendation of the Telecom Regulatory Authority of India even before the Lokniti Foundation order – in which the Supreme Court ordered SIM cards to be verified – had been passed. Dwivedi went on to argue that the government had a legal right to mandate that all SIM cards be linked to Aadhaar.

What actually happened

If that is confusing, here is the sequence of events:

  • In 2015, the Supreme Court issued an order saying Aadhaar could not be made mandatory until the court settles the fundamental rights challenge one way or the other.
  • In 2016, the Aadhaar Act was passed, but it focused on the delivery of subsidies and welfare and so did not cover phone connections.
  • In February 2017, the Supreme Court ordered the government to verify and register every SIM card in the country, but it did not require this to be done by linking with Aadhaar.
  • Despite this, the government spread the message that the Supreme Court had made linking Aadhaar to your SIM card mandatory, a false claim that was also relayed by major news organisations. Others criticised these false messages, to no avail.
  • When asked why the government was forcing people to link their SIM cards to Aadhaar, despite orders from the Supreme Court saying it could not be mandatory, the government repeated this false claim that the Supreme Court had itself ordered the linking.

On Wednesday, when Justice Chandrachud questioned him about these false claims, saying government has used their order as a “tool”, counsel for UIDAI seems to have admitted two things:

  • That it had already made Aadhaar-SIM linking mandatory, based on what it saw were powers granted in the Telegraph Act and despite the Supreme Court saying Aadhaar cannot be mandatory for any services.
  • That the government has been misguiding the people all this while, claiming that it was the Supreme Court that made Aadhaar mandatory, when in fact that was not true.

As Gautam Bhatia, one of the lawyers challenging Aadhaar tweeted, this revelation – coming so late in the process – is about as perfect an encapsulation of the government’s approach to Aadhaar as possible: Get its way first, tell everyone that it is required and mandatory, figure out the legalities afterward.

Aadhaar’s DNA

This approach is, in fact, built into the DNA of the Aadhaar project and dates back to before the Bharatiya Janata Party took a u-turn and decided to support it. Aadhaar was first introduced into the Indian Parliament through a Bill in 2010, but that was rejected by a parliamentary committee because of legislative, security, and privacy concerns. Another committee in 2012 recommended that the law explicitly say that it was voluntary, and allow people to opt out. Yet even as these debates were underway, with no law being passed to legitimise the programme, the UIDAI continued pushing enrollment of a scheme. This legitimacy would eventually only be provided in 2016 – seven years after enrolments began.

Indeed, one of the central fears of the government’s enrol-first, legalise-latter approach was the fait-accompli concern: that the government would simply argue in court that so much money has been spent enrolling more than 1 billion people onto this platform, and then getting them to link to other things, that it would be a waste to strike it down now – even if it violated some rights. That is exactly the tack the government took, as has now been laid bare in the mobile linking. This strategy has been enabled to a large part by the Supreme Court’s delay in taking up the Aadhaar case urgently.

Even those who do not believe that Aadhaar violates fundamental rights ought to be able to see the bad faith with which the government has rolled out and defended the scheme, going so far as to argue in court that Indians have no fundamental right to privacy and then, brazenly, denying having made that argument in the first place. Justice Chandrachud’s question to the UIDAI counsel was useful in telling us more about how this government has approached the entire case. Hopefully it provokes the Constitution Bench to take a close look at many of the other claims that the government has been making about Aadhaar. If it was brazen enough to lie to the public about a Supreme Court order, what else has it been misleading us about?