BY USHA RAMANATHAN ON 16/05/2017 • 3 COMMENTS
The story of Aadhaar is one of coercion, rampant illegality and outrageous contempt of Supreme Court orders through which the project has built its database.
Aadhaar project cannot survive without undermining and overriding the rights of the people. Credit: Reuters
This is the third in a series of articles on the UID project that Usha Ramanathan will be writing for The Wire. Read the first part here and the second part here.
Coercion has been a part of the Aadhaar project from the very beginning. Attorney general Mukul Rohatgi’s recent statements in court brought us up-to-date on what this means.
On May 2, the attorney general swept aside objections to the people being forced to part with their biometrics.
“There is no absolute right over the body,” he said, in response to Shyam Divan’s demurral at enrolling on the UID database, and so being compelled to give one’s biometrics to the state as a precondition for filing taxes and having a PAN card.
“The right not to have bodily intrusion is not absolute,” the attorney general told justices A. K. Sikri and Ashok Bhushan, “and the life of a person can also be taken away by following a due procedure of law.”
There are breath checks for drunken driving, extracting blood or taking the fingerprints of an accused, he said. “The right to your body,” he said, “is restricted by the state.”
The judge interjected to point out that all that he referred to were in the realm of criminal law and maybe reasonable restrictions. But paying taxes was different. “You cannot stretch this theory to that extreme,” Sikri said. “Isn’t there a balance between dignity and state interests?”
This is “Rousseau’s social contract,” the attorney general said. It is difficult to know which edition of Rousseau he had read, but he went on to say, “The state is like a corporation. Individuals are members of a corporation. There is nothing absolute in them.”
“From the cradle to the grave, we are in a contractual relationship with the state. We don’t live in a vacuum.”
At another point in the proceedings: “If you don’t want to part with anything in return for state protection and services, go and live in the Himalayas.”
And, in response to the idea of the “right to be forgotten” as a right currently under evolution, he said: “You want to be forgotten, but the state doesn’t want to forget you.”
“In the world, the only way is to digitise iris and fingerprints kept for posterity. There is no other way. In a social contract, you have no right to be invisible.”
In a chilling statement, he said: “Forcible taking of fingerprints is not self-incrimination. The court said that 50 years ago, we will go to DNA next.”
The new normal
Watchers of the proceedings before the court recognised it as a throwback to the then attorney general’s arguments in the Emergency court in 1975. The government had then suspended Article 21, and was using the Maintenance of Internal Security Act, 1971, to pick up and detain the opposition and its detractors in droves. It claimed that the law as it stood took away the jurisdiction of the court to review such detention, which meant that there was no recourse to courts to regain liberty. During the second day of the proceedings, Justice H.R. Khanna – who was later to write a heroic dissent in the case – asked the attorney general Niren De: “Life is also mentioned in Article 21, and would the government argument extend to it also?” De answered: “Even if life was taken away illegally, the courts are helpless.”
This is perhaps the most infamous argument made in the Supreme Court. (That four of the five judges hearing the case accepted this argument made recovery from ignominy long and hard; and it has never been forgotten.)
It seems De deeply regretted his role in how the case went. Justice Krishna Iyer says in his book Leaves from my Personal Life (2004), that De had said to him some time before he died that he had expected the court to be enraged by his argument, and to assert that the court had the paramount power to protect the life of the citizen. “I was violently against the Emergency provision in its extreme form and expected the court to strike down the totalitarian regime. That was why I urged a horrendous forensic submission.” He spoke to Iyer of the agony in his soul, and of sleepless nights. Regret, after many years, but still, regret.
The situation in the world of the ‘new normal’ is different. For, in August 2015, the attorney general had hammered a nail deep into the rights of people when he had told the court that the people of this country do not have a right to privacy.
The court recognised that its first stop had to be at the coercion in the project, which is why the first order of the Supreme Court in the case was to stop the coercion that had become the most prominent aspect of the UID project. That was on September 23, 2013. Yet, coercion has been relentlessly practised and is an integral part of the UID project. Why?
The most candid admission of coercion as strategy is at the start of the book Rebooting India (2015), co-authored by Nandan Nilekani and Viral Shah, explaining how the UID project was conceived and carried out. The very first lines in the book are a quotation from Niccolo Machiavelli’s The Prince (1532): “It must be considered that there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things.”
“Machiavelli’s originality – and the source of his enduring, if notorious, reputation – was his blatant rejection of traditional morality as a guide to political action, and his insistence that statecraft be based on a realistic view of corrupted human nature,” writes Stewart Patrick. May be it is not significant, but it is interesting that The Prince was dedicated to “Lorenzo de Medici, leader of the family who overthrew the government he worked for.”
This is from a setting in the text where Machiavelli proceeds to say what means should be adopted by the ‘innovators’ who want the change. Should they appeal to the people? Or ‘can they use force?’ He dismisses the idea of appeal, and said: “The nature of the people is variable, and whilst it is easy to persuade them, it is difficult to fix them in that persuasion. And thus it is necessary to take such measures that, when they believe no longer, it may be possible to make them believe by force.” (emphasis added) Machiavelli also said: “Never attempt to win by force what can be won by deception.” Very interesting thinker, Machiavelli, with very contemporary adherents.
The gleeful anticipation of compulsion is found in a document prepared in 2006 by Wipro. This was the strategy vision document that set out a roadmap for an identity project where the plans were that within ten years of launching the project, there would be an “executive and legislative mandate for all service providers (government and private) to deem the UID number as THE (in the original) universal identity for service delivery”.
In 2010, in the UIDAI’s strategy overview document, we read: “Enrolment will not be mandated: The UIDAI approach will be a demand driven one, where the benefits and services that are linked to the UID will ensure demand for the number.” And: “governments or registrars (will not be precluded) from mandating enrolment.” (emphasis added) That is, we will keep saying it is voluntary, but get the government to make it mandatory and that will build up the data base. A little bit of deception, a little bit of coercion (not really a little bit …) Then, as the numbers swell, it will be said that people have voted on their feet for this project – while really they stand in line, waiting anxiously to enrol for fear that they will be denied their entitlements, subsidies and services, be seen as criminal, or may even have their citizenship placed in jeopardy because they are not on the database.
So, in September-October 2011, there was one attempt to make the UID a precondition for receiving cooking gas cylinders, that was brought to an early close, a little bit because of angry letters reaching the ministry, largely because there were too few on the database at that time – the number hadn’t reached ten crore yet.
Then it was 2012. Impatience had already set in. Nilekani had said to a packed audience in June 2011 that by 2014, the database would have 650 million people. By January 2012, 10.25 crore numbers had been generated. Towards the end of that year, there were frenzied announcements that governments would be demanding the UID number for all manner of services. The central government said they would be rolling it out in the PDS, NREGA, pensions, etc. systems. State governments found their own excitement. In illustration, on December 18, 2012, the revenue department of the government of Delhi issued an order:
“It has been decided [it proclaimed] to use the Aadhaar platform for the delivery of various services rendered by the revenue department. Hence, it is considered necessary that the Aadhaar information of the applicants seeking the various certificates from the revenue department is to be compulsorily given in the application forms itself….”
It was ordered that Aadhaar number of the applicant will be required to be mentioned compulsorily in the application form for the following certificates:
- SC/ST certificate
- OBC certificate
- Domicile certificate
- Income certificate
- Birth order
- Death order
- Surviving member certificate
- Solvency certificate
- Nationality certificate
In December 2012, the list was expanded to include:
- Registration of marriages under Hindu Marriage Act
- Registration of marriages under Special Marriage Act
- Solemnisation of marriages
- Registration of various documents in the sub registrar offices
When were these orders issued? A year and a few days after the Parliamentary Standing Committee on Finance had considered the National Identification Authority of India Bill 2010, and rejected it. Not just that, the committee had also rejected the project saying, among other things, “The UID scheme has been conceptualised with no clarity of purpose and leaving many things to be sorted out during the course of its implementation; and is being implemented in a directionless way with a lot of confusion.”
Function creep had begun.
This compulsion, when unleashed, provoked Justice K.S. Puttaswami to file a petition in the Supreme Court. In the meantime, petitions had been filed in the high courts of Bombay and Madras and these too were moved to the Supreme Court. In October 2013, more petitions were filed by social activists including Aruna Roy, Nikhil Dey, Bezwada Wilson, retired defence personnel including Colonel Mathew, Major General Sudhir Vombatkere and Major General Jatar and persons from the world of science and technology and the Beghar Foundation in Delhi.
The story of the court orders that were deliberately disobeyed is now widely known. On September 23, 2013, the court directed that no one should be denied any service only because they did not have an ‘Aadhaar card’ (there was then no clarity then whether it was a ‘card’ or not; and the confusion hasn’t quite disappeared yet). The court also said that illegal migrants should not be enrolled.
In Rebooting India, Nilekani and his co-author say: “Unfortunately, some agencies jumped the gun in declaring the Aadhaar number to be mandatory for availing certain benefits. This was in opposition to the UIDAI’s stand on the matter, and the Supreme Court had to step in and reverse any such declarations.”
Well, that is not quite true. In an application to the court in early October 2013, the UIDAI asked the Supreme Court to modify its order so that the government could “insist upon Aadhaar”. This is what the UIDAI asserted while asking that the UID be made mandatory for subsidies and social security: “As a generic proof of identity, Aadhaar can be used by individuals to prove their identity to obtain services. The government has no intention to mandate Aadhaar for availing services of a generic nature which do not involve expenditure from the public expenditure such as bank accounts, telephone connections and railway reservations etc. where Aadhaar can be one of the many ways of a resident proving his identity and address required by service providers.” Nilekani was then the chairperson of the UIDAI. But that is some years ago, and, as J.K. Rowling explains, Muggles’ memories do get ‘modified’.
The court was not moved. After that, there was an order on March 24, 2014, and three orders in 2015 where the court said again, and again, and again and again that the UID cannot be mandatory; enrolment cannot be compelled. And, by the last of those orders, which was rendered on October 15, 2015 by five judges, the UID could be used, only voluntarily, and only in six fields – JDY, provident fund in the EPFO, NREGA and pensions – not all pensions, but only those under the National Social Assistance Programme. That order was categorical: “We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this court one way or the other.”
In March 2016, the government had the Aadhaar Act passed as a Money Bill. Initially, the government said they would take the court’s assent that they can use the UID in more fields; but, some time later, they unilaterally decided to assert that the court orders no longer hold sway because of the Act.
The Supreme Court’s six orders from September 23, 2013 to October 15, 2015 represent the efforts of the court to rein in the project, and the state, from using coercion as a means of forcing people into submission. The judges had begun to hear about the precarity the project introduced into our polity – and these included concerns about:
- surveillance
- profiling
- tagging
- convergence
- the untested technologies and experimenting on a whole population
- failing biometrics and the inevitability and experience of exclusion
- that there is no opt-out provision
- the companies involved at every stage from pilot to execution and from enrolment to controlling the database, and their relationship with intelligence agencies of foreign governments
- the deliberate assassination of privacy
- the wilful lawlessness
- ‘seeding’ the number in all manner of data bases, increasing vulnerability of the person
- national security risks that gets enhanced when databasing a whole population in the way the project was doing.
Since the time of the filing of the petitions, much has happened that should worry the court.
- Private companies, such as OnGrid, BetterPlace, TrustID, have begun to profile and trade on data about individuals using the UID system.
- The digital economy is being pushed based on the UID system, where those who do not have mobile phones are to depend on their biometrics, when biometrics are failing for large numbers of people in PDS and NREGA.
- Data is being projected as the new property; detailed personal information can be viewed individually or through algorithms.
These are not pretty times.
One of the deeply disturbing aspects of the project is the extent to which contempt for the court has infected the administration. Nachiket Udupa and Ankita Anand have published their harrowing experience while getting married. What is striking is that everyone, from the clerk to the additional district magistrate, knew about the orders of the court. Everyone knew they were acting in contempt, everyone claimed that the software gave them no choice – till the officers were threatened with being exposed in court, is when they caved. And this happened only in one case – the process remained unchanged, and everyone else was told that they had to produce a UID number to be able to get service. And this is how it has been for over three-and-a-half years now. There is complicity in contempt everywhere.
What has coercion done? It has forced people
- to get on to the database,
- without consent
- without an opt-out provision,
- where failures of the biometric system or ‘Aadhaar mismatch’ system have to be borne by individuals,
- where there is no liability when the system falsely accepts or rejects any person,
- part with their biometrics – which is then managed and handled by companies of dubious provenance – and with no recourse when biometrics fail
The list goes on. And all this is before the court.
First it was NREGA and PDS to add the poor and the rural to the database. Then it was LPG to get at the others. Then, to mop up anyone left out there have been all these notifications since January. Bonded labour, persons getting out of manual scavenging, women rescued from prostitution, survivors of the Bhopal gas disaster, persons with disability and children entitled to a midday meal have to have their numbers embedded in the various databases. If they do not already have a number, they are to get enrolled – never mind that the court had said that enrolment is not to be mandatory. Actually, most of these seem to have been issued following blanket instructions that all ministries and departments notify that the UID is compulsory in anything they do, never mind the specifics. And, for those escaping these points of capture, there are taxes that cannot be paid, and the PAN card which will be nullified, if the UID number doesn’t appear alongside. The only agency that has respected the court’s dictum, even if after initially flouting it, is the Election Commission, which withdrew its seeding instruction soon after the court’s order in March 2015: the only agency that has taken the court seriously.
The deceit is carrying on openly, and in plainly contradictory words. In 2016, there was a further strategy overview document which said, “Enrolment is the process by which residents voluntarily assert their identity and apply for an Aadhaar.” And some pages later, “All Aadhaar enabled applications require 100% digitisation and seeding of customers/beneficiaries databases with Aadhaar number”, that is, everyone has to have it.
This is the story of coercion, and rampant illegality and outrageous contempt of court orders through which the project has built its database. It is about choicelessness, destruction of the idea of consent and the state assuming power over the body and data of every person which it then allows corporate interest to use.
The attorney general has done a great deal to let the court know that the project cannot survive without undermining and overriding the rights of the people.
The silence of the court is deafening.
Usha Ramanathan is a legal researcher.
