Nandan Nilekani’s plea that the Supreme Court “tweak” its order of August 11 in his article in these pages (‘Why Supreme Court judgment on Aadhaar calls for an appeal’, September 15) is innocent of the experience that people have had with the unique identification (UID) project in the past five years. Why does the court order trouble him? Has the project really been voluntary? Has the project done what is needed to protect privacy? Should the executive be given freedom to frame whatever policy it will? And, would Mahatma Gandhi have been with Nilekani in wanting the population of India fingerprinted and iris-scanned?
The last is easily answered. In 1906, Gandhi was in South Africa, fighting the registration and fingerprinting of Indians in the Transvaal. This provocation led to mass resistance and protest, deliberate disobedience of the law, trial and punishment, and, as Charles DiSalvo records in The Man before the Mahatma, Gandhi was arguing: “It was not a question of thumb or fingerprints, but this was a thing that touched on their liberty.” That he would have endorsed a system where registration with fingerprints and iris-scans was pushed through on the threat of exclusion from food and fuel, schooling, old-age support, work, marriage, caste certificate, vaccination, child care — that seems a perfect description of what would not have found sympathy with Gandhi.
The UID was never about individual choice. It was never intended to be voluntary; it was only intended to be marketed as being voluntary. Even in 2010, the UIDAI strategy overview document admitted that while the official line would be that enrolment was not mandated, “This will not however, preclude governments or registrars from mandating enrolment.” And that has, in fact, been the strategy. Except that the Supreme Court decided that the project needed to be reined in, when confronted with concerns about lawlessness, national security, personal security and privacy, using the population of the country to experiment with biometrics, engaging companies with dubious credentials to hold and handle our data, surveillance, tracking, profiling, the untested claims about plugging leakages and the threat of exclusion.
The UIDAI and the government have responded by refusing to comply with the orders of the court, and that is how, contrary to law, the database has been built and multiple databases “seeded” with the number.
The Supreme Court has passed orders telling the government and the UIDAI and all other agencies what they may not do five times. Each time the orders have been brazenly flouted. On September 23, 2013, the court said that no one shall “suffer for not getting the Aadhaar card”. The government, oil marketing companies and the UIDAI shed the pretence of voluntariness and rushed to the court asking that it accept that the UID be mandatory. On November 26, 2013, the court refused to oblige. So, the order of the court was simply ignored, and coercion continued. On March 24, 2014, the court, having received complaints from the public that its order had had no effect, directed that “all authorities… modify their forms/ circulars/ likes so as not to compulsorily require the Aadhaar number”. This was not done. Instead, it was asserted that the “system” would not accept a form without the UID or enrolment ID. And, anyone without either of the two would be shepherded to an enrolment booth, which amounted to mandatory enrolment on the UID database. This was then passed off as “voluntary” and as being done with “informed consent”.
On March 16, the court again said: “In the meantime, it is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities… We expect that both the Union of India and states and all their functionaries should adhere to the order passed by this court on September 23, 2013.” This gentle chiding produced no results.
Before all this, the parliamentary standing committee had asked that the proposed law, and the project itself, be sent back to the drawing board. The executive has carried on as if the law has nothing to do with it.
On August 11, the court asked the government to stop using the number and the information that is with the UIDAI for anything other than the PDS and LPG — exceptions, it must be said, that leave the poor unprotected, especially as none other than the Election Commission seems to respect this order. Six years after the project began, the UIDAI now admits that the biometrics of our “working population… adds another challenge to achieving uniqueness” and has set up a “competence centre” to research it.
When the case is heard by a larger bench, to which it was referred on Wednesday, the court is going to have to find answers to what the project is doing to people’s rights, the lawlessness of the state, the relationship between the people and the state, and about the emerging global geopolitics centred around population data.
The writer works on the jurisprudence of law, poverty and rights.
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