Activists 'Deeply Disappointed' With Parts of Majority Judgment in Aadhaar Case
Insist the Supreme Court relied more on UIDAI's presentation rather than affidavits and testimonies presented about large scale exclusion and deaths due to Aadhaar while upholding Section 7, which allows its use for targeted delivery of subsidies, benefits and services.
27/SEP/2018
A number of rights activists have expressed “deep disappointment” with some parts of the majority judgment on Aadhaar delivered by three of the five judges of a Supreme Court bench headed by Chief Justice of India Dipak Misra on the ground that it overlooked the fact that a program that had been initiated to give an identity to the poor had turned into a regressive program that governments are using to deny even basic necessities like rations, education and banking services to the poor.
The activists also insisted that while the judges who gave the majority judgment relied on the submissions of the Centre, they overlooked the affidavits and testimonies submitted by activists to show the flip side of the Aadhaar program. They said most of the judges also failed to appreciate the threats posed by the technology involved in the Aadhaar program and only justice D.Y. Chandrachud – who gave a dissenting judgment and declared the Aadhaar Act 2016 to be ‘unconstitutional’ – appeared to have considered the concerns raised in this regard.
‘Aadhaar grew from being an identity to one used for threatening exclusion’
Activist Usha Ramanathan said she was deeply disappointed with some parts of the judgment. The Aadhaar project was started without explaining the reasons and people were forced to enrol or face the threat of being excluded from their entitlements.
“They began by saying it will help the poor have an identity. Later, it became a threat of exclusion. They began saying, we can take your money, you will become criminally liable and you will not be able to pay taxes if you do not have an Aadhaar,” she added.
Ramanathan said she had begun looking into Aadhaar after she read comments that “government has a lot of data but it cannot handle it”. She said the fears about the security of the data began to unfold when it emerged that a US-based company which had close links to the Central Intelligence Agency was involved. Whistleblower Edward Snowden had already cautioned that the US’s National Security Agency had a programme to watch over the people of the world.
She said the gradual linking of National Payments Corporation of India and tax networks to Aadhaar and the proclamation that the government wanted to build businesses on it called for further caution.
The judgment delivered today, she said, “shakes up the project”. “They have found there are problems which cannot be ignored.”
The Supreme Court’s judgment ‘shakes up the programme’, activists said. Credit: PTI/Atul Yadav
UIDAI submitted 49,000 entities were blacklisted for corruption
With passage of time, the ugly problems related to Aadhaar started showing. There were groups of people who approached the activists because they were denied rations as they could not get their cards linked to Aadhaar.
During the proceedings, the UIDAI itself had submitted that 49,000 entities engaged in making Aadhaar had been blacklisted for corruption, Ramanathan said. “They were collecting money from people and deliberately delaying the process to harass them. But this did not prevent the court from upholding the linkage of Aadhaar with welfare programmes,” she said.
However, the activist also saw a few positive takeaways from the judgment. “It was held earlier that a money bill cannot be challenged in a court, but this case has changed that.” Ramanathan expressed surprise at the manner in which the court “acted as an editor” for the parliament and directed how parts of the law could be changed so that it survives constitutional scrutiny.
Ramanathan also termed the judgment to be awkward as it valourised the power point presentation made by Unique Identity Authority of India in the court over the submissions made by the activists. “You can’t replace constitutional argument with it,” she quipped.
‘Justice Chandrachud’s minority judgment crucial’
The eminent activist said it was the minority judgment delivered by justice Chandrachud which caught the essence of the submissions of the activists. She said, “Constitutional jurisprudence has moved on minority judgments.” In this regard, Ramanathan recalled how the judgment in Kharak Singh v State of UP delivered by justice Subba Rao had become a majority judgment later.
She also insisted that justice Chandrachud’s judgment was “important” because he “provided judicial recognition” to what had been submitted by the activists and was “consecrated” through his judgment. “He also recognised that technology changes the nature of the game,” she added.
Finally on the issue of filing a review, Ramanathan said while no decision has been taken as the judgment was voluminous and they were yet to go through it, some parts, like biometric authentication in which the government has also accepted certain level of rejections, could be revisited.
‘Despite having Aadhaar, people unable to get rations ‘
Nikhil Dey of Mazdoor Kisan Sangharsh Samiti spoke about how exclusion due to Aadhaar was not just confined to the inability of people to link their ration cards, but extended even to those who had linked them.
“The whole programme is about linking to biometrics and while the government claimed that only about 0.27% of people were facing problems due to it, the number is between 20-27% when it comes to denial of entitlements despite possessing Aadhaar,” he said.
The Rajasthan government’s official website, he said, admitted last year that 25% of people were unable to take rations despite Aadhaar linkage. “The issue is that when even in New Delhi, phone networks do not work properly. How are such systems expected to work in remote places?”
He charged that this was a clear case of violation of right to life under Article 21 of the constitution. The idea that governments are making profits by denying people their right to rations and pensions is unacceptable. So with NREGA, he said, there have been numerous instances where payments have not reached people despite their bank accounts being also linked to Aadhaar.
Biometric verification of Aadhaar has experienced various troubles. Credit: Reuters
Prime minister’s claims
Dey said the government had claimed that Aadhaar has been used to stop corruption as 10 lakh bogus pensions had been stopped. “Prime Minister Narendra Modi also said that it has resulted in huge savings – but saying everything not disbursed is a saving is an insult to injury for those who are being denied their legitimate rights and those who have died due to denial of rations,” he charged.
The activist also questioned how many FIRs had been filed if so much corruption had taken place that thousands of crores of rupees had been saved. So, he said, he was “deeply disappointed that Section 7 of the Aadhaar Act which allowed its use for over 400 government schemes and services had not been struck down”.
Dey also hoped that Aadhaar will become an election issue for the people. “We are saying please vote on Aadhaar. People must vote whether there should be any such law or not.”
Anjali Bharadwaj of National Campaign for People’s Right to Information said the fact that the Aadhaar Act was brought as a money Bill is a cause for concern. She noted that finance minister Arun Jaitley had stated that it was brave of his government to have brought the Act as a money Bill, but what was actually on display was “brute majority” of the Modi government.
Bharadwaj said the judgment has let down the poor and marginalised as it has not addressed the issue of exclusion. All the evidence, through affidavits and testimonies, was presented before the Supreme Court and high courts. Still, the court’s direction to make Aadhaar mandatory amounts to letting down such people, she said.
‘PoS machines do not function due to lack of connectivity’
Recalling how a young girl, Santoshi, had died in Jharkhand due to exclusion from the public distribution system due to Aadhaar, Bharadwaj said there have been many more such deaths across the country. “In Delhi, where we have all infrastructure, there is a place where a point of sales PDS machine is kept on a jamun tree so that it could operate,” she said, adding that “during a pilot project over 20% PoS machines had failed leading to massive exclusions. As such, she the apex court upholding the use of Aadhaar for government services and schemes was a “big disappointment”.
She also questioned the rationale behind the government calling Aadhaar an “anti-corruption tool’. The PM had said 4 crore bogus cards had been weeded out, resulting in a saving of Rs 14,000 crores, but no evidence was presented, she charged.
Likewise, Bharadwaj said citing Aadhaar data, the government had said 80,000 bogus teachers had been found, but not a single FIR was filed. “So this government keeps going back on all its claims.”
She also pointed out how different figures, without any basis, were being doled out by senior government functionaries. “In court, the government said Rs 57,000 crore had been saved due to Aadhaar, but now FM says Rs 90,000 crore has been saved.”
Activists questioned Prime Minister Narendra Modi’s claim that Aadhaar has resulted in huge savings. Credit: PTI/Files
Bharadwaj said the government’s penchant for doling out figures also extended to its claim that there was over 99% biometric accuracy. “Where are these figures coming from? Why is evidence not presented?” she asked.
Another activist Amrita Johri, spoke about how biometric success also always did not mean delivery of rations. “Sometimes the dealers say that the PoS has not captured the biometrics when they actually had and people are turned away and their rations siphoned off. Also, often the biometrics are scanned one day and people are told to collect their rations later,” she said.
‘Aadhaar has been reduced to a skeleton, how long will it survive’
A coder-turned-lawyer S. Prasanna, who had appeared for the petitioners in the Aadhaar case, said he viewed the judgment with a “note of optimism” as “there was an ambition behind the project”. Stating that the “universality and ubiquity” of the project has received a “push back in court”, he said the ambition and vision behind the project has also seen severe curtailment.
Prasanna said by striking down Section 57, which dealt with private ambition, the judgments “such the blood out of the program, and a key element of the Aadhaar law, and the ruling on metadata takes the flesh out of the program.” “What the court has preserved is only the skeleton and we don’t know how it will survive,” he chuckled.
