Court upholds India’s controversial unique ID project with caveats

The challenge to the constitutionality of the Aadhaar project was dismissed but many of its sections were struck down. However, activists said the judgement didn’t go far enough

September 29, 2018 by Surangya
Photo: Newsclick /Nitesh Kumar

India’s Supreme Court delivered a landmark verdict on September 26, limiting the scope of the country’s ambitious unique identity project, Aadhaar. The project that was supposed to eliminate fraud in the country’s welfare schemes, soon turned into something different, and dangerous. It not only allowed different organizations – public and private – to collect large amounts of data which was poorly protected, but also created a new set of issues in the disbursal of welfare benefits.

The Supreme Court judgment attempted to solve some of these issues. However, many activists were unhappy it didn’t go far enough.

The process of creating identity cards for Aadhaar began in 2010. Enrolment centers sprang up across the country. A key feature was the collection of biometric information – the impressions of all 10 fingers and retina scans. For quite a while, the government was not too forthcoming about why all this data was being aggregated at such massive scales. When questions started being raised, the Aadhaar Act came into the picture.

The project was conceived during the period of the United Progressive Alliance (UPA), the coalition led by the Indian National Congress, which was in power from 2004 to 2014. The UPA government attempted to pass the National Identification Authority of India Bill, 2010 but failed after multiple concerns regarding privacy and security were raised. In 2014, the National Democratic Alliance (NDA), headed by the far-right Bharatiya Janata Party came to power.

The NDA introduced the Aadhaar Act in 2016, which was passed in the Lok Sabha, the lower house of Parliament, where the NDA has a majority.  However, the bill was never debated in the upper house, the Rajya Sabha. It was declared a Money Bill – one which specifically deals with the Consolidated Funds of India. The Rajya Sabha cannot debate or amend such bills, only give its recommendations. The speaker of the Lok Sabha is the only authority which can decide if a bill is a Money Bill or not. This decision cannot even be subjected to judicial review.

Five key amendments were recommended by the Rajya Sabha, but all of these were rejected.

Over the years, the project faced a number of legal challenges, especially over the tendency of the government and private agencies to declare Aadhaar mandatory for the delivery of vital services. These challenges culminated in a five-judge bench of the Supreme Court hearing the case for 38 days. The final judgement was almost 1,500 pages long. One of the key questions had to do with the constitutional validity of the entire Act as it bypassed the the Rajya Sabha.

Four of the judges maintained that the Act was constitutional. The lone dissenting voice, Justice D.Y. Chandrachud, declared the Aadhaar Act entirely unconstitutional, pointing out that  “Since the Act was passed as a Money Bill, even though it does not qualify to be so, the passage of the Act is an illegality.”

However, while declaring the Act to be constitutional, the majority of judges still found some sections to be far-reaching and invasive, prompting them to strike these down entirely, or read them down.

For instance, Section 57 of the Act, which allowed private companies to demand Aadhaar data to verify customers identities was struck down. Many commercial entities, including banks and telecom operators had begun demanding Aadhaar details soon after the Act was passed. Customers were threatened with disruption of services if they did not link their Aadhaar number with these services. Some private companies, such as Airtel, Reliance and Vodafone, were given direct access to the Central Identities Data Repository (CIDR) which stores the country’s Aadhaar details.

Soon, telecom major Airtel was found to be involved in a major scam. While collecting Aadhaar details for issuing new SIM cards, the company had also covertly taken customer consent for opening bank accounts in their names, without informing them. Monetary benefits from welfare schemes were then redirected into these accounts, while the customer remained clueless.

Following the court verdict, private companies raised concerns that their businesses might get affected, and urged the government to introduce legislation that would allow them to access Aadhaar details again. FinTech companies, which provide e-wallet services, have been using Aadhaar as identity proof. Their businesses may be affected severely.

Arun Jaitley, India’s finance minister, addressed these concerns, saying a more careful reading of the judgment was required, and that the ban on private companies could be “temporary.”

But the judgment does not offer any clear direction on what needs to be done in cases where private companies have already collected data. “We have linked our bank accounts, our telephone data. Will all that be purged from the database? Because if is not purged, we face the same risks as before,” said Prabir Purkayastha, president of the Free Software Movement of India.

While the majority of the judges opined that Aadhaar did not facilitate the creation of a surveillance state, activists, as well as the dissenting judge Chandrachud were strongly convinced otherwise.

Aadhaar is still needed for filing income tax returns and availing welfare benefits. This means different data silos will still be linked to each other. So if one database is breached, all others come under risk. The risk of a central database which is linked to others, has been raised repeatedly by experts and activists but this issue has not been addressed by the court or the government. It is this linking which makes profiling a real possibility.

The court also ruled against collection of any metadata in Aadhaar transactions. When Aadhaar is used for any authentication, the data stored also includes “record of the time of authentication, identity of the requesting entity and the responses provided by the Authority.” This metadata can no longer be collected, and the entire authentication log cannot be stored for more than six months. The earlier period was five years.

The government kept justifying Aadhaar saying it would ensure a more efficient implementation of the welfare system. But on the ground, Aadhaar led to people being excluded from crucial services, leading to even deaths.

The Public Distribution System in India provides monthly supplies of ration to millions who live below the poverty line. Without this system, many of these families will starve to death.

Disturbingly, there has been a sharp rise in the number of Aadhaar-related starvation deaths.

After the government made Aadhaar mandatory for availing of benefits, cracks began to appear in the machinery. The authentication process involves the individual’s biometric data matching that which is stored in the repository. But the system failed to take into account the poor connectivity in many parts of the country.

To get around this, local downloading and storage of data was made available, despite the security concerns it posed. Even so, many authentications failed, and people were refused rations and other supplies.

In one case, Hansraj Oraon, a blind man, first stopped receiving his monthly government pension of Rs. 600 and was then was denied ration guaranteed under the PDS. A blind man cannot get retina scans, and subsequently, cannot get an Aadhaar card.

Wednesday’s Supreme Court verdict acknowledged these cases of exclusion, but refused to act upon them. Justice A.K. Sikri, who delivered the majority judgment, said these cases were concerning, but to invalidate the entire project on the basis of this would be akin to “throwing out the baby with the bathwater.”

“We are deeply disappointed that the poor were used as an excuse to pass this law.  We are deeply disappointed that the poor have got no relief, whereas the middle class has got relief from this judgment,” said Nikhil Dey, a human rights activist.

Justice Chandrachud again strongly disagreed with the views of the majority judgment, tasking the state with guaranteeing rights, “The institution of rights places a heavy onus on the State to justify its restrictions…The State has failed to justify its actions and to demonstrate why facilitating the targeted delivery of subsidies, which promote several rights such as the right to food for citizens, automatically entails a sacrifice of the right to privacy when both these rights are protected by the Constitution,.” he wrote.

Children, however, will no longer have to provide Aadhaar details to gain admissions to schools. They can be enrolled in the system with the consent of their parents or guardians, and on coming of age, they may exit if they wish it.  The Supreme Court also declared as unconstitutional the section mandating disclosure of Aadhaar information to government agencies in matters of “national security.”

The UIDAI (Unique Identification Authority of India) is the government agency which implements the project, as well the  only body anyone can approach for grievance redressal. Until the judgment, the UIDAI was also the only body that could approach the courts to file cases against private organizations in case it had been wronged. Ordinary citizens were not given the right to approach the courts. This too has been altered by the court.

While this could provide some relief to citizens whose confidential information may have been compromised, how this will be implemented is yet unclear.

In sum, while the judgment has assuaged the concerns of critics in certain areas and ensured greater safety for those who have enrolled, it has been a disappointment in other areas. The minority judgment has done much more to address some of these concerns. Many believe this is a positive development as these issues have at least come under the scanner of the judiciary.

“I think if we look at where technology is going and the risks that lie in these directions, it is going to be apparent in the next 10-20 years that this was a bad judgment. … I think we will revisit this, and soon,” Prabir said.

[This article has been updated with additional information and edited for size]