Thursday, April 30, 2015
Usha Ramanathan on how the Modi Government is shamelessly flouting three Supreme Court Orders on Aadhaar
By law, you should not be denied any government service in India if you don’t have an Aadhar card number. So why do various government programs continue to ignore three Supreme Court orders and insist on the dreaded number, and how are they getting away with it?
In the last year-and-a-half, the Supreme Court has said at least three times that having an Aadhaar number is not to be made mandatory. Yet, governments and institutions have persisted with their demand for people’s Aadhaar numbers as a condition for getting entitlements and services. Has the latest Supreme Court order on March 16 – reiterating Aadhaar cannot be mandatory – solved the problem? Here’s the deal with what’s going on.
What is Aadhaar?
Aadhaar is the brand name for the number being produced under the Unique Identification (UID) project. The Unique Identification Authority of India (UIDAI) was set up in 2009 by an executive notification to generate and assign unique identification numbers to residents. There was, and continues to be, no law governing the project. In December 2010, months after the UIDAI had begun to collect data – including people’s biometric data – and after persistent demands that such a project cannot be allowed to be carried on without at least the protection of a law, a Bill was introduced in the Rajya Sabha. This Bill – the National Identification Authority of India Bill, 2010 – was roundly rejected in December 2011 by the Parliamentary Standing Committee on Finance cutting across party lines: it recommended that the project be sent back to the drawing board.
Although enrolment on the UID database was initially promoted as being voluntary, very soon the element of coercion began to emerge. A notification issued by the Ministry of Petroleum and Natural Gas on 26 September, 2011 proposed making the Aadhaar number compulsory for getting gas cylinders. This was soon withdrawn, but, as things turned out, the idea of coercion was not abandoned. Among other things, coercion and threat of exclusion from services has been a way of driving people to enrolment stations, forcing them to be on the UID database.
In the beginning, the central and state governments entered into Memorandums of Understanding(MoUs) with the UIDAI to act as its Registrars. In time, by demanding that the Aadhaar number be seeded in bank accounts, gas connections, ration cards and, lately, the voter ID, the governments have been active in introducing compulsion. The reason many people are upset over Aadhaar at this point is that even as the Supreme Court is yet to hear and decide on the many issues raised before it challenging the UID project, and even as the court has directed that Aadhaar cannot be a precondition for accessing services and entitlements, governments have continued to act as if the order of the court does not exist.
For what kinds of services was Aadhaar first made compulsory?
In 2011, Maharashtra was the first state government in which servants and judges were not to receive salaries unless the Aadhaar number was embedded in their bank accounts. As 2012 drew to a close, a series of circulars was issued by various governments that made having an Aadhaar number compulsory for a range of services. In Delhi, for instance, the Revenue Department of the Delhi government issued an order that the application forms for the registration of various documents in sub-Registrar offices – registration of marriages; Scheduled Caste, Scheduled Tribe, domicile and income certificates; birth and death orders; surviving member certificates; solvency certificates; nationality certificates – should have the Aadhaar number inscribed on them. Scholarships for students and kerosene subsidies were linked with Aadhaar. As 2013 rolled in, the linking of bank accounts with the Aadhaar number became a prerequisite for receiving subsidies and scholarships. LPG subsidy was made dependent on providing the Aadhaar number and a bank account number. This was launched in a few districts and then expanded to more and more parts of the country. And so it has gone on.
So can I be denied services if I don’t have an Aaadhar number?
By law, you shouldn’t. The first time the Supreme Court ruled that having a UID number should not be a prerequisite for receiving services and subsidies was in an interim order on September 23, 2013, after a spate of cases in the Supreme Court raised a range of concerns about the UID project including the element of coercion that had been introduced into it. “No person should suffer for not getting the Aadhaar card,” it said.
This order was swiftly followed by a spate of applications – from oil marketing companies like Indian Oil Corporation, Bharat Petroleum Corporation and Hindustan Petroleum Corporation; the UIDAI and the Finance Ministry, among others – asking the court to revise its order and allow enrolment for Aadhaar to be made mandatory. This was a turnaround from the UIDAI’s earlier assertion that enrolment for Aadhaar was voluntary. In a hearing on October 8, 2013, the court declined to change its order.
A few months later, while giving orders in a different case (about transferring biometric data stored with the UIDAI; more on that later) in which the UIDAI was a party, the court added on March 24, 2014: “[N]o person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the parties are directed to modify their forms/circulars/ likes so as not to compulsorily require the Aadhaar number in order to meet the requirements of the interim order passed by this Court forthwith.”
Close to a year later, it was much in evidence that the order of the court was continuing to be ignored. On March 16, 2015, when the cases in which the UID project had been challenged in the Supreme Court came up for hearing before a bench of Justice J Chelameswar and Justice SA Bobde and Justice C Nagappan, the deliberate flouting of the interim orders was brought up, leading the court to say: “In the meanwhile, it is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by various authorities; we do not propose to go into the specific instances. Since the Union of India is represented by learned Solicitor General and all the states are represented through their respective counsel, we expect that both the Union of India and states and all their functionaries should adhere to the order passed by this court on 23 September, 2013.”
So now, after three Supreme Court orders, are the governments paying heed?
Nothing indicates that the government will honour the Supreme Court’s repeated directions.
On 23 February 2015, I accompanied two young persons applying to have their marriage registered under the Special Marriage Act before the Additional District Magistrate (ADM) in Delhi. They were told that the system would not accept their application without their Aadhaar enrolment ID. They categorically refused to comply, and cited the orders of the Supreme Court. They proposed going to court to get a direction issued to the ADM. The ADM then relented and that led to the acceptance of their application – a series of dots (….) in the enrolment ID column did the trick. The form, though, remains unchanged.
On 25 February, 2015, the Ministry of Rural Development sent out a letter about the government's decision that wages under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) would only be paid through direct cash transfer, and that all states “are to seed the Aadhaar numbers of the MGNREGA beneficiaries and enrol the MGNREGA beneficiaries who have not yet got enrolled for Aadhaar.” Jean Dreze reports from the field that those not enrolled are not being given job cards. There has been no revision of these circulars.
On 3 March, 2015, a Maharashtra Cabinet decision is recorded as having taken the “revolutionary decision to link ration cards and FPSs with biometric database and Aadhaar.” The same day, the Election Commission announced a National Electoral Roll Purification and Authentication Program (NERPAP) to be done by linking the Aadhaar database with the electoral database to be completed by 15 August, 2015.
On March 19, 2015, just three days after the court order, a circular from the office of the Revenue Commissioner on the use of the Aadhaar card said, blandly, that “all concerned are requested to ensure strict compliance of the orders of the Hon’ble Supreme Court of India. Any administrative instructions in violation of the order of Hon’ble Supreme Court will have no validity.” The circular acknowledges the two orders of September 23, 2013 and March 16, 2015. The March 24, 2014 order which requires changes in the forms and circulars is not even mentioned.
On April 3, 2015 it was reported that the Haryana government has made the Aadhaar card mandatory for admission to government schools and for scholarships across the state. This will especially affect students from Scheduled Caste and Backward Caste communities, and those in the BPL category, who depend on government schools and on scholarships. On April 4, 2015, a newspaper reported that the NITI Aayog has decided to set up an elaborate “child-tracking” system. On April 5, 2015, it wasreported that a school in Goregaon has made the Aadhaar card a requirement for admission.
The violations are everywhere. The Prime Minister’s interest in getting “universal coverage” by June 2015, and his push to make Aadhaar the platform for government schemes – entirely disregarding the directions of the Supreme Court – has contributed to this in good measure.
Where the court has directly intervened, there has been some respite. In a PIL filed in the Allahabad High Court, the court had asked the Principal Secretary (Food and Civil Supplies) in Lucknow to explain how the state government was continuing to insist on the Aadhaar card or number being provided. This seems to have spurred the government to pass an order dated 26 March, 2015 directing District Magistrates and district production supply offices not to compel the production of Aadhaar card or number for getting ration cards.
Otherwise, there is little that has been done to conform to the order of the Supreme Court.
The Delhi marriage registration episode does show, though, that insistence that the Supreme Court order be respected does have an effect, especially since contempt action against those violating the order cannot be counted out. Writing to the court citing narratives of coercion has also found a positive response, as is reflected in the orders of March 24, 2014 and March 16, 2015.
But why this Kolaveri about Aadhaar?
The first order of the Supreme Court in September 2013 followed after a number of persons approached the court raising serious questions about the constitutional sustainability of the UID project, through which the Aadhaar number was being generated. Petitioners in the Supreme Court raised issues about the personal and national security threat posed by the convergence of various databases with the use of the Aadhaar number. So, birth, caste, health insurance, travel, bank, employment, income and education records, for instance, being bridged by the Aadhaar number, were seen to present risks to both personal and national security. The debate that erupted in the US after Edward Snowden’s revelations about how the American security establishment works to collect, collate and use information about persons and people across the globe has deepened these concerns.
There is no law on data protection. There was, and continues to be, no law on privacy, despite the serious privacy implications of projects such as the Aadhaar project.
The security implications of engaging companies with close ties to intelligence agencies of other countries – L-1 Identity Solutions with America’s CIA and Homeland Security, and the company Safran, in which the French government has a substantial share; Accenture with Homeland Security; Mahindra Satyam-Morpho with Safran – have been raised and remain to be answered.
Concerns about surveillance, tracking, the transparency of the citizen to the state (which is an inversion of what the RTI tries to achieve in making the state transparent to the people), the admittedly untested nature of a biometric database, the absence of a feasibility study before launching of such a massive project, and its link to the National Population Register, have been raised in the cases.
A petition in the Supreme Court filed in 2012 by Justice KS Puttaswamy, a retired judge of the Karnataka High Court, also raises questions about illegal immigrants being enrolled on the UID database. The most immediate and proximate consequence was of exclusion – where people not enrolled on the UID database may be denied a service because they did not have an Aadhaar number. Those not enrolled for any reason, ranging from those unable to get on to the database to those not wanting to, and those whose biometrics may not work because of the nature of their work – such as manual labor or those working with chemicals – or because of age, could find themselves deprived of their entitlements. There was also in the background the constant iteration of the UIDAI that enrolment was voluntary and not mandatory. This was echoed by government counsel in court when it came up for hearing in September, 2013.
So, on September 23, 2013, the court issued an interim order, till the case could be finally decided, that “no person should suffer for not getting the Aadhaar card”, even where some authority had issued a circular making it mandatory. In addition, it said, “when any person applies to get the Aadhaar card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”
So can the data stored on my Aadhaar card be used for any purpose without my consent?
The problems in functioning without a privacy law or data protection law that governs the UID project came to light last year in a case that reached the Supreme Court.
In March 2014, the Supreme Court restrained the UIDAI from transferring biometric information to any other agency without the written consent of the individual. This came as the result of a little-noticed but significant matter. In January 2013, the rape of a young child in the toilet of a school in Goa caused an outcry. As the local police didn’t get anywhere with the investigation, the case was handed over to the CBI. The CBI said it had found a random palm print at the site of the offence, that they could not say for certain if it had anything to do with the crime, but that it may help if they were to be given the UIDAI’s biometric database. Initially, they requested thehanding over of the entire biometric database of all persons enrolled in Goa. That was amended to a request for biometric information of three persons, and, later still, for running the random print against the whole database to see if a match could be found.
The CBI received an order from the court of the Judicial Magistrate First Class, Goa, saying that the “necessary data” that the CBI had sought – “the data base of persons from Goa who has enrolled with the UIDAI” – be given to them. The UIDAI protested this order in the Bombay High Court. One, they said that the biometric database could not help with identifying random prints, that only with carefully collected prints of eight fingers and two thumbs and two irises could de-duplication and identification be done. The Bombay High Court, however, said it could be left to someone deputed by the Director of the Central Forensic Science Laboratory to figure out whether or not the UIDAI's biometric database could help the investigating agency. Two, the UIDAI invoked concerns of privacy, citing that as the reason they should not be required to part with the biometric database. Ironically, the UIDAI drew on the arguments that the petitioners in the Supreme Court had made while challenging the UID project.
With the Bombay High Court decision going against them, the UIDAI appealed to the Supreme Court. By this time, and since the September 23, 2013 order, the court had received a spate of complaints that despite its orders that the Aadhaar be not made mandatory, they were being denied services and subsidies. So, with the UIDAI as a party before it, the court on March 24, 2014 reiterated and reinforced its earlier order even as it restrained the UIDAI from transferring biometric information to any other agency without the written consent of the individual.
What next? Is the March 2015 order the end of the Supreme Court’s involvement in the matter?
No, the matter is far from finished in the court. There is a range of petitions challenging the UID project, including its constitutional validity, which is to be heard by a bench of the Supreme Court presided over by Justice Chelameswar. The case that the UIDAI is pursuing against the CBI has been tagged to these petitions and will also be heard. The hearings are to commence in the second week of July.
On March 16, 2015, when counsel for the petitioners expressed his concern that governments were pushing ahead with enrolment so they could present the court with a fait accompli – that they already have large numbers on the database and so the project should be allowed to go on – the court said during the hearing that that would not hold weight with them. When the matter gets heard, the court may well consider what they need to do in the context of the flouting of the court’s orders by the governments and other agencies and institutions. The multitude of issues raised in the petitions, including its constitutionality and legality, will be heard and decided in court.
In the UK, when their identity scheme was abandoned for being “intrusive, bullying and ineffective,” the database had to be dismantled; that was the only way to respect the law and to protect citizens from a surveillance state.
Usha Ramanathan works on the jurisprudence of law and poverty. She has been interrogating the UID project and writing about it extensively since 2009.